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December 7, 1995


Appeal from the Circuit Court of the 13th Judicial Circuit, LaSalle County, Illinois. No. 94-CF-138. Honorable H. Chris Ryan, Jr., Judge, Presiding.

Released for Publication January 10, 1996.

Present - Honorable Tom M. Lytton, Justice, Honorable William E. Holdridge, Justice, Honorable Kent Slater, Justice. Justice Holdridge delivered the opinion of the court. Slater and Lytton, J.j., concurring.

The opinion of the court was delivered by: Holdridge

The Honorable Justice HOLDRIDGE delivered the opinion of the court.

The issue in this appeal is whether the trial court erred in entering an order of reimbursement for services of the public defender. The court reimbursed LaSalle County from cash bond posted by a third party for the release of defendant Angela Webb pending trial. For reasons that follow, we reverse.

Defendant was charged with unlawful delivery of a controlled substance (cocaine) (720 ILCS 570/401(c)(2) (West 1992)). Bail was set at $15,000, and a warrant for her arrest was issued. Upon her arrest, defendant filed an affidavit of assets and liabilities showing no income, assets, liabilities or resources. The court found her indigent and appointed the LaSalle County public defender to represent her.

Defendant pleaded not guilty and moved for a reduction of bail. The motion was denied. On May 14, 1994, Ronald Crawford posted the required $1,500 cash bond to secure defendant's release. The matter was tried by a jury and resulted in an acquittal. The court entered judgment on the verdict and ordered that the bond money be used to reimburse the county for the public defender's services.

Defendant and Ronald Crawford, represented by private counsel, subsequently moved to vacate the reimbursement order. The motion was granted, and the matter was set for a hearing.

At the hearing, defendant testified that she had no income or assets. She lived with her mother and four children. She stated that she did not owe Crawford any money and no one owed her any. She explained that Crawford was her boyfriend.

Assistant State's Attorney Brian Towne then testified that the reimbursement order was entered on the court's own motion. He further testified that in the cases he had prosecuted there had never been an instance where a reimbursement order for public defender services had been entered against an indigent defendant who had not posted bond. Towne said he was handling about 175 cases and that reimbursement orders had been entered when bond money was available in about 50 cases without evidentiary hearings. He testified that in this case Public Defender Dan Bute stood mute and did not object to the reimbursement order.

Bute testified that it was the custom in the county for the County Board to augment the salaries of the attorneys in the public defender's office with one-half of the amount recovered by the county through reimbursement orders. He estimated that each attorney received about $4,000 per year pursuant to this practice. Bute stated that he did not object to the reimbursement order in this case and he had never advised defendants of their right to a hearing on ability to pay for his services. The court then inquired how many hours he had spent representing this defendant. Bute testified that it had been more than 21 hours and that there had been no other costs.

Following closing arguments, the court first found that defendant had no ability to pay. Turning to the interests of Crawford, the court noted the reverse side of the standard bail bond form, which contains the following statement:

"When the person charged has been discharged from all obligations in this case, the security posted shall be distributed as follows: A. When 10% bond has been posted, and the case has been disposed by dismissal or by final order of the Court, the 90% of the amount posted will be available for refund to the person charged, or to apply to any fines, costs, fees, penalties or judgments assessed in the case. 10% of the amount posted, but not less than $5.00, will be retained as bail bond costs."

The court then observed that defendant had benefited from the services of the public defender and that $1,350 was a reasonable reimbursement for 21 hours of his services. However, the court continued, it had given special consideration to the fact that the money was posted entirely from Crawford's own funds. Therefore, the court concluded, the amount of reimbursement ...

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