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11/17/95 PEOPLE STATE ILLINOIS v. JOHN P. MOMPIER

November 17, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,
v.
JOHN P. MOMPIER, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. The Honorable Marcus R. Salone, Judge Presiding.

Released for Publication December 21, 1995.

The Honorable Justice Egan delivered the opinion of the court: McNAMARA, P.j., and Rakowski, J., concur.

The opinion of the court was delivered by: Egan

JUSTICE EGAN delivered the opinion of the court:

The police arrested the defendant, John Mompier, for possession of a controlled substance, and a third party posted bond for him. The Illinois Department of Revenue filed a lien against this bond deposit to secure a tax it claimed the defendant owed under the Cannabis and Controlled Substances Tax Act (Ill. Rev. Stat. 1991, ch. 120, par. 2151 et seq. (now 35 ILCS 520/1 et seq. (West 1992)))("Drug Tax Act"). When the defendant failed to appear in court on the criminal charges, Judge Ronald Himel entered a judgment of bond forfeiture. Almost two years later, the defendant appeared before Judge Salone and pleaded guilty to the charges against him. Judge Salone ordered the clerk of the circuit court to refund the bond deposit to the defendant's attorney, Robert Smith, but the clerk's office refused to refund the money because of the State tax lien. Consequently, Smith filed a motion for refund of bond notwithstanding notice of the State tax lien. Over the Illinois Attorney General's opposition, the judge granted Smith's motion. The Attorney General appeals this ruling.

The defendant was arrested on December 7, 1990, and charged with possession of a controlled substance with intent to deliver and unlawful use of a firearm by a felon. On December 11, 1990, an individual named Cecelia Accetturo posted $8,000 bond for the defendant. He was subsequently indicted.

On February 26, 1991, the Illinois Department of Revenue sent the defendant a Notice of Tax Liability For Cannabis and Controlled Substance Tax Jeopardy Assessment under the Drug Tax Act. This assessment of $283,359.39 included $56,250 in tax, $225,000 "in penalty" and $2,109 in interest. On March 6, 1991, the Department of Revenue also sent the defendant a Notice of Lien for the same amount. The Department of Revenue sent both of these notices to the defendant's last known address. It appears that the Department of Revenue sent both notices by registered mail, but we cannot discern from the copies of the signed receipts in the record who signed for these pieces of mail. Also on March 6, 1991, the Department of Revenue filed a Notice of State Tax Lien with the clerk of the circuit court, and, on March 7, 1991, it recorded the notice of lien with the Cook County recorder.

On October 15, 1991, the defendant failed to appear on the criminalcharges. Smith informed Judge Himel that he had not had contact with the defendant for three or four weeks and that the defendant had failed to appear in another case the week before. The judge issued a warrant for the defendant's arrest, entered an order of bond forfeiture and set November 15, 1991, as the date for a judgment of bond forfeiture. The defendant failed to appear on or before that date, and the judge entered a judgment of bond forfeiture on November 15, 1991.

The defendant resurfaced and appeared in court on August 11, 1993, at which time Judge Salone reinstated his case. On October 6, 1993, he pleaded guilty to the charges. Judge Salone sentenced the defendant and asked him whether he wanted his bond refunded to his attorney as a portion of the attorney fees. The defendant agreed to this, and the judge entered an order directing the clerk to refund the bond to Smith. No one fromthe Attorney General's office was present at this hearing, but two assistant State's Attorneys were present. The assistant State's Attorneys remained silent during the discussion of the bond refund.

Sometime around the time of the sentencing hearing, the defendant signed a form entitled "Petition to Vacate Bond Forfeiture and Judgment." His signature was not notarized. In this petition, which stated that it was pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 1992)), the defendant requested that the judge vacate the bond forfeiture judgment of November 15, 1991, because the "defendant was not given notice of the judgment as required by *** 735 ILCS 5/2-1302." The date written next to the judge's signature on the petition is October 6, 1993, but the petition was file stamped October 7, 1993. At a hearing in the case on December 20, 1993, the judge stated that it was his "vague recollection" that, on October 6, he had ordered a bond refund, and, the next day, Smith informed him that the clerk's office was requiring the section 2-1401 petition. There is nothing in the record that indicates this petition was served on the State's Attorney's office or the office of the Attorney General.

On November 15, 1993, Smith filed a motion for refund of bond notwithstanding notice of the State tax lien because, he asserted, he had learned on November 1, 1993, that the clerk would not refund the bond because of the tax lien. A notice of motion in the record indicates that Smith served the Attorney General's office and the State's Attorney's office with this motion. The proof of service was signed but not notarized.

On November 18, 1993, Smith and an assistant State's Attorney appeared before Judge Salone on this motion. No one representing the Attorney General's office was present, but Smith asserted that he had provided that office with notice of the motion. The judge continued the hearing to December 13.

On December 13, 1993, the Attorney General's office filed a response to Smith's motion. On December 20, 1993, there was a hearing on this motion, at which Smith, his attorney and an assistant Attorney General were present.

After hearing arguments, the judge directed the clerk of the circuit court to refund the bond to Smith notwithstanding the notice of the tax lien. He reasoned that the State did not have a right to the bond proceeds because these had been posted by a third party who would have been unaware that her funds were subject to seizure by the government for outstanding taxes. The judge stayed the execution of this order until January 14, 1994, but he denied the Attorney General's motion to stay the order pending appeal. According to the Attorney General, Smith has received the bond deposit. The Attorney General asks that we reverse the judge's grant of Smith's motion for refund of bond ...


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