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09/01/88 the People of the State of v. Troy Owens

September 1, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

TROY OWENS, DEFENDANT-APPELLANT

IN PEOPLE

v.

NICHOLLS (1978), 71 ILL. 2D 166, 177, 374 N.E.2D 194, 198-99, THE SUPREME COURT STATED:



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

528 N.E.2d 446, 174 Ill. App. 3d 156, 123 Ill. Dec. 901 1988.IL.1339

Appeal from the Circuit Court of Vermilion County; the Hon. Rita B. Garman, Judge, presiding.

APPELLATE Judges:

JUSTICE McCULLOUGH delivered the opinion of the court. GREEN, P.J., and KNECHT, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH

Defendant's term of periodic imprisonment was revoked (Ill. Rev. Stat. 1987, ch. 38, par. 1005-7-2) and he was sentenced to a term of six years' imprisonment. Defendant appeals from the judgment of the circuit court of Vermilion County, arguing (1) the trial court erred in ordering the bond money applied to payment of the remaining fine; and (2) he is entitled to 263 days' credit against his sentence, rather than 261 days' credit as reflected in the mittimus.

Defendant pleaded guilty to the offense of unlawful delivery of a controlled substance (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1401(b)(7)) and, in October 1986, was sentenced to a term of four years' periodic imprisonment and ordered to pay a $5,000 fine. The $2,000 cash bond posted April 16, 1985, was applied against court costs and the $5,000 fine, leaving $3,310 owing on the fine.

On May 4, 1987, a petition to revoke defendant's periodic imprisonment was filed, alleging defendant had committed the offense of theft over $300 by taking a motorcycle. Over the State's objection, defendant was released on $10,000 recognizance bond during his employment hours. On May 27, 1987, a petition to revoke defendant's bond was filed, alleging defendant had fled the Vermilion County work release program pending the revocation hearing and had not returned to the Public Safety Building since May 25, 1987. On May 28, 1987, the motion to revoke bond was allowed and a warrant was issued, with bond set at $20,000. On August 19, 1987, defendant appeared after service of the warrant and $2,000 bond was posted. On September 9, 1987, an amended petition to revoke defendant's periodic imprisonment was filed, alleging theft of the motorcycle and defendant's failure to return to periodic imprisonment, after release for work purposes, until he was returned from Arizona in August 1987. After hearing in September 1987, the court found these allegations of the amended petition proved. In October 1987, defendant was sentenced to a term of six years' imprisonment, with credit for 261 days previously served.

In November 1987, defendant moved for Disposition of the $2,000 bail bond posted in August 1987. At hearing, defendant's mother testified she borrowed money from a bank to post defendant's bond, has three other children at home and holds no substantial assets of her own in her name. The trial court found it was without authority to return any portion of the bond posted and directed the bond applied to court costs and the outstanding fine against the defendant. This appeal followed.

Defendant first argues the trial court erred in ordering application of the bond money against the fine previously imposed in that the forfeiture language of section 110-7 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 110-7) is not mandatory and, therefore, the trial court erred in concluding it was without discretion to return the bail deposit to defendant's mother. Second, defendant argues that even if section 110-7 of the Code is mandatory, the court erred in mandating the $2,000 bond deposited in August 1987, while the petition to revoke periodic imprisonment was pending, forfeited to satisfy the fine imposed in October 1986 when defendant was sentenced to periodic imprisonment, maintaining subsection (h) forfeiture only applies when defendant posts the bond and is thereafter convicted and fined.

"We need not decide whether or not there is a conclusive presumption that the bail deposited under this section of the Act belongs to the defendant. Section 110 -- 7, which provides for the deposit of 10% of the bail in subparagraph (a), provides in subparagraph (h):

'After a judgment for a fine and court costs or either is entered in the prosecution of a cause in which a deposit had been made in accordance with subsection (a) the balance of such deposit, after deduction of bail bond costs, shall be applied to the payment of the judgment.' (Emphasis added.) (Ill. Rev. Stat. 1975, ch. 38, par. 110-7(h).)

Thus, under this section the deposit of 10% of the bail is not only for the purpose of ensuring defendant's presence in court at an appointed time but also constitutes a fund from which a judgment for fine and costs against the defendant may be satisfied without the necessity of having an execution issue and a levy made upon the deposit, regardless of whose money was deposited. Whether or not the cash received as bail is actually the property of the defendant is irrelevant."

(See also People v. Foreman (1987), 153 Ill. App. 3d 346, 359-60, 505 N.E.2d 731, 739, appeal denied (1987), 115 Ill. 2d 545, 511 N.E.2d 432, cert. denied (1987), 484 U.S. 854, 98 L. Ed. 2d 115, 108 S. Ct. 160 (rejecting argument that $7,000 bail deposit, provided by defendant's uncle, should have been returned to the uncle and not used toward payment of defendant's $100,000 fine).) Defendant maintains Nicholls held that a trial court may apply a defendant's cash ...


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