Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

People v. Dale

OPINION FILED JULY 3, 1985.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

ROGER D. DALE, DEFENDANT (THEODORE VAN WINKLE, APPELLANT).



Appeal from the Circuit Court of Saline County; the Hon. Michael Henshaw, Judge, presiding.

JUSTICE HARRISON DELIVERED THE OPINION OF THE COURT:

Theodore Van Winkle, an attorney, appeals from that portion of a judgment of the circuit court of Saline County which held that a bail deposit made by Roger Dale, defendant in the underlying criminal case, should be applied to payment of a fine levied against Dale, and not toward payment of attorney fees owed to Van Winkle for his representation of Dale. For the reasons which follow, we affirm.

The record reveals that on February 22, 1984, Dale was charged with one count of unlawful delivery of a controlled substance (cocaine) and one count of unlawful use of weapons. On March 13, 1984, Dale posted bail in the amount of $15,000, and signed a document entitled "BAIL BOND FOR APPEARANCE OF DEFENDANT WITH DEPOSIT OF CASH BAIL SECURITY." This document provides, in pertinent part:

"If said defendant shall comply with the conditions of his bail above set forth, this recognizance shall become null and void and said defendant shall be entitled to the return of 90% of said deposit, the remaining 10% of said deposit to be retained by the Clerk of this Court as bail bond costs; provided, however, that in the event a judgment is entered against said defendant for a fine and/or court costs, the balance of such deposit, after deduction of bail bond costs, shall be applied to the payment of said fine and/or court costs. If said defendant shall fail to comply with said conditions of his bail, this bail bond shall remain in full force and effect and said defendant shall be liable for forfeiture thereon." (Emphasis added.)

After being charged with additional offenses, Dale posted an additional $5,000 bail, and signed another document containing language identical to that quoted here.

On June 25, 1984, the date Dale's jury trial began, Dale executed the following assignment to Van Winkle:

"The undersigned hereby assigns to Theodore Van Winkle, Attorney at Law, McLeansboro, Illinois, sufficient part and portion of the deposit for the bill [sic] for the undersigned in the entitled cause to pay Theodore Van Winkle attorney fees, costs, and advances made by Theodore Van Winkle in representing the undersigned in the Circuit Court of Saline County, Illinois.

Dated this 25th day of June, 1984.

/s/ Roger D. Dale."

Dale was found guilty of all of the charges against him, and was sentenced to various concurrent terms of imprisonment. He was also fined $139,200 pursuant to section 5-9-1.1 of the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38, par. 1005-9-1.1), which provides that, in cases where a defendant has been convicted of an offense involving possession or delivery of a controlled substance, "a fine shall be levied by the court at not less than the full street value of the cannabis or controlled substances seized." The court also ruled that part of the fine would be satisfied from the bail deposits, and that the fine took precedence over Van Winkle's attorney fees insofar as application of the bail money was concerned.

• 1, 2 On appeal, Van Winkle reasserts that Dale's bail deposits should have been used to pay the attorney fees owed him, and not toward payment of Dale's fine. We disagree. While Dale executed the previously quoted assignment to Van Winkle, it is axiomatic that, when a valid assignment is effected, the assignee acquires all of the interest in the property that is transferred, and stands in the shoes of the assignor. (People v. Kleba (1982), 110 Ill. App.3d 345, 366, 442 N.E.2d 605.) Under the unambiguous terms of the bail bond agreements involved here, Dale's bail deposit was to be applied to the payment of, among other things, any fine levied against him. Thus, Van Winkle, as assignee of Dale's interest in the bond, acquired only the interest which Dale could convey; namely, the right to return of the bail deposit to the extent that the deposit exceeded costs, fines, and the amount retained by the clerk of the circuit court. Accordingly, since the fine levied exceeded the amount of the deposit, the trial court correctly concluded that Van Winkle could not collect his fees out of the deposit. The cases cited by Van Winkle do not support a contrary result, as neither People v. Wurster (1981), 97 Ill. App.3d 104, 442 N.E.2d 650, nor People v. Kleba (1982), 110 Ill. App.3d 345, 442 N.E.2d 605, involves the question of whether the rights of the assignee of a bail deposit are governed by the terms contained in the underlying bail agreement executed by the defendant in the criminal case. People v. Maya (1985), 105 Ill.2d 281, 473 N.E.2d 1287, also relied on by defendant, is not on point, as Maya involved the construction of a specific statutory provision concerning payment of attorney fees from the bond money of a defendant tried in absentia. (105 Ill.2d 281, 284-85.) Lastly with respect to this issue, we note that section 110-7 of the Code of Criminal Procedure of 1963 supports the result reached here, as it specifically provides that a defendant's bail bond deposit shall, after deduction of bail bond costs, be applied to the payment of any judgment for a fine and/or court costs entered against the defendant. (Ill. Rev. Stat. 1983, ch. 38, par. 110-7(h).) Moreover, the provision of the Code allowing the court to pay a defendant's bail deposit to the defendant's attorney permits payment only of "whatever amount [is] repayable to defendant from such deposit." (Ill. Rev. Stat. 1983, ch. 38, par. 110-7(f).) Had the legislature wished for attorney fees to take precedence over fines and court costs in the distribution of bail deposit money, it could easily have said so, and these statutes reveal no such intent.

• 3 In an additional argument, Van Winkle asserts that section 5-9-1.1 of the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38, par. 1005-9-1.1) is unconstitutional, and that Dale's fine must therefore be vacated. Section 5-9-1.1 provides:

"When a person has been adjudged guilty of a drug related offense involving possession or delivery of cannabis or possession or delivery of a controlled substance as defined in the Cannabis Control Act, or the Illinois Controlled Substance Act, as amended, in addition to any other penalty imposed, a fine shall be levied by the court at not less than the full street value of the cannabis or controlled substances seized.

`Street value' shall be determined by the court on the basis of testimony of law enforcement personnel and the defendant as to the amount seized and such testimony as may be required by the court as to the current ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.