the issue at the heart of this case is whether a difference failure to act under the violation of the bail bond statute is willful when he or she is incarcerated the illinois supreme court has already answered this question in the negative and found that such a failure to surrender cannot be well this offense is governed by section thirty two dash in a criminal code which makes it an offense when the defendant forfeits his bail by failing to appear for a court date and then willfully fails to surrender himself within thirty days and people the illinois supreme court ruled that a defendant does not willfully fail to surrender when he or she is incarcerated there the defendant was released on bail he appeared several times afield from your first trial date the bail was forfeited issued for his arrest and he was subsequently charged under section thirty two just the evidence showed that he was indeed in jail from june first to july twenty eighth he was released for nine days and then jailed again on required under the statute and it's not something that they'll receive from court considered and rightly either they rejected the finding that those nine days he should have used to return and it's the same thing here mr costa had until december fifteenth to return did not appear and he was in hawaii and it was his understanding that if he didn't appear he had thirty days to be back but it was also his understanding that he had to be there at the data bank for what was that correct your honor and the consequences of that  for the jury to decide yes but your honor the true home judge also incorrectly advised the jury to rely on this holding from people the brad again which deals with a different statute doesn't deal with the that i'm sorry and it also frankly i think it's bad law if it says it relies on statutes from louisiana texas and one other state it says that this issue has never been question of law for the court to decide whether someone willfully fails to surrender i think under the facts of this case when the different is not given for thirty days it is a question of law they have to have the full thirty days if this had been a case where it was passed that three days and you needed to consider the willfulness yes then the maybe there is a fact for the jury but here he has the full thirty days he could have decided days one to twenty eight i am i'm not going to go back i'm not going to wrack and then finally have a change of heart on page twenty nine and come back and he cannot be charged under section thirty two question and that sorry and the legislature even said in a different subsection of the statute this doesn't stop the agreed with the prosecutor trial that they should follow broad again which again is section one ten that seven of the criminal procedure constituent again it doesn't apply it's dealing with a money judgment this is a criminal  also i guess another case that was relied on by the state was people v i'll be around that's also factually distinguishable although it does actually address the right sachi which they're the defendant was never incarcerated he pretty much never showed up before his bail was forfeited and after and he testified he just didn't come to court because he stayed home and he went on the streets and that court distinguish its facts from decision based on the lack of incarceration and said that the mere failure to surrender within three days isn't enough it must be willful but when you're just out the streets thirty days and then pass thirty days that's obviously will statute i guess if the court doesn't have any more questions i would just reserve and carry a bottle and just add that we think that his conviction should be vacated outright and also just as to the fees argument and the third part of my brief there's five three fines or three fines and three fees that the state agrees should be yeah and what if if we were to reverse out right would we have any necessity to consider the determination of whether or not mr costa committed a violation of bail bond and willfully failed to surrender within thirty days was absolutely a factual determination based and should be determined by the jury in this case based on the facts and no i would not prior to that i'm sorry the expiration of thirty days would you agree that this would be an income way to fast i think it has to panic and i think it's not that simple the answer that is not that simple have to look he does not have would that you have to prove beyond a reasonable doubt that he will fully fail to surrender within thirty days how can you say yes next thirty days well he has a right he has thirty days but you have to look at the circumstances begin court on the twenty fourth and the legal aid attorney says don't worry about it you're in a custody you can't be there i've got another court date you don't have to appear and it was based on that that there was nine days that he was out during that thirty day period that the early supreme court in reversing the trial court determined that that didn't necessarily shall but he wasn't going to before he felt surrounded because he was told by his lead attorney you don't have to go to court mr coaster was never told that mr costello had to bond sat on the day he was supposed to appear he had he was rowing his way to hawaii he had by his arm admission he left the state of illinois without permission the trial court and i would you're saying is that is it the jury the jury can decide that he never would have yes correct but that's not what the statute says the statute says the say that your obligations to prove that he never would within thirty days mean and i think that's what the supreme court was trying to say is that there's no way the state can prove with them thirty days and less to tell you here at that time yes i think that's the key to the case is with him thirty days  not willfully fails to surrender i think that's a fearful question the problem here is with him thirty days yet it think is where you're stuck well i think within and i guess to within that then what that really your argument should be with the legislature that you know if you think that's not right if you think he shouldn't have thirty days go talk to springfield but the law is right now that your feet does that if you go so why in the she was a million dollars doesn't mean that's correct lose it million dollars that's correct but because because it's not without his four off off the standard set in the stitches sad is that you know when you when you blow your bet with you you lose the money but the statue also says that to be prosecuted to be prosecuted you have to willfully fail to surrender within thirty days those are two different you know the argument the state makes that he's get away with something here i'm sorry take that to the legislature that's not appropriate argument here and that this guy that's we're not seen within within an hour to be back here there's a difference in where he has taken himself he took himself to a place where he thought he would never be found he took composed it took he told pm when she when he spoke to her that he was in a saying i think i think let me backtrack on that for a second i think it would be again i think that's more of a situation not necessarily with the v o b be cause you have to make the determination of where the risk of failure to surrender would be i mean that's a different hop back and surrender if he's in the custody obligation is and mike my question is how can you possibly prove beyond a reasonable doubt that he will flee fail to appear if you was locked in a cell in another jurisdiction i think again you can look at the facts and circumstances surrounding his con he's going to do with him and at times it didn't even happen yet that's where i go back to this within thirty days i mean i think here you have an argument that he you know like just palmer said whether he would have appeared if you know and there's facts about whether his conduct is will fall but what is this within thirty days mean and does that under these  prescribed for prosecution because there's still time left on the clock when he gets picked up so i think it's worthless with him thirty days as opposed to what we're talking about whether you know his his intent was to willfully fail to appear because you're still but he had ninety days to appear and doesn't because he was told he didn't have to i think that did grant what the ratliff decision speaks to in the only supreme court holds and that that it's a question for the trier of fact and it's not a legal question as to whether or not there was those thirty days that you don't consider what the defendant did or did not do his own conduct his his own blame for the nest within those thirty to me actually this on the other case there was another case to the violation the order protection i think it i believe it dead this case was a combination of charges that's correct but then there's a separate other place yes i think if you fines were already within respect to the other ok but you don't you believe these were improperly get a different court date and didn't have to come to court the fact that he had ninety days didn't necessarily show that he wasn't going to win will willfully surrender one of those he didn't want to run again i think we know that's a defendant walking around the current means he this case but i would just i would ask this court not to find as a matter of law that that thirty days is unfettered without regard to what the defendant in this case where he was what he was doing the fact he had the plane he had state it failed to prove element beyond a reasonable doubt that's correct and the standard of review there would probably would be get no less jury would be david jackson versus virginia so i believe the standard of review was on satisfactory or or  was was incorrect it was incorrect the way it was written but what happens then is during closing argument the prosecutor argues the facts and when the defense attorney argues in closing argument he argues the law and what he does in arguing violation of bail bond is a possibility of surrounding yourself a valid us defense to the charge of violation of beyond what is the spirit of the rot so in response to that originally the parties all agree that they should continue to deliberate the trial judge then says i there's no there's no peaceful support for the idea that that far off is anything to do with this and so what are we supposed to do with the fact that he gave the you know what happens when a judge gives is a an instruction that's not based on the law so you did argue the jury instruction was improper yes it seems to me that if you were to find a jury instruction improper then it would necessarily require  what the defendant did on those nine days he didn't say oh was he just down the street and maybe this is will fall when will cut the thirty day short here that it didn't happen at all it is not dispositive that and it wasn't jail and cost or wasn't they were both told i know it was litigated pretrial and again three jury instruction conference but the trial court relied on brought again and that was improper that deals with a completely different section of the criminal procedure code not the section a of thirty two dash and then subsection d they say this is not preclude the state from seeking a contempt of court charges this is a situation where you forfeit the money you that's your punishment you lose the money but there is not a criminal offense here they  would have to charge him with something else contempt of court as to the argument about jacko you know but the thing is that is the state makes the point that he testified and he said that he was going to come back and because the two issues are so intertwined it just basically directed the verdict and then also shows that they can't prove it here they cut his thirty day short and that's improper and also ratliff was decided on the correct standard the jackson lee virginia and used it doesn't change the standard they considered whether there was proof beyond reasonable doubt and i said it was so good luck