FIFTH DI VISI ON June 29, 2007

No. 1-05-3362 THE PEOPL

E OF THE

STATE OFIL

LI NOI S, ) Appeal from the

) Circuit Court of Plaintiff-Appellee, ) Cook County ) v. ) ) TAREK AL

BIT AR, ) ) Honorab le Defend ant-App ellant. ) Rickey Jones, ) Judge Presi ding. JUSTICE O’MARA F ROSSARD del ivered t he opinion

of the co urt: Defendant Tarek Albitar appea ls the trial court’s order deny ing him a refund of his bond to his sure

ty. Defend

ant was d eported by t he I mmigrat ion and Na

turalizat ion Servic e befor

e his trial was set to begin. Defendant arg ues that bond forfeiture was inappropriate bec ause he "was unable to appear through no fault of his own but, rathe r, through the actions of the United States Governm ent.” F or the re asons tha t follow, w e affir

m. BACKGROUND Defendant, Tarek Albitar, is a native and c itizen of Jordan. He is not a citizen of the United Sta

tes. On November 1 3, 1987, de fendant was admit

ted to the United Sta

tes as a nonimmigrant visitor. On May 2, 1997, de fendant’s status was adjusted to that of a lawful permanent resident.1-05-3362

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On Octobe

r 31, 2002 , defend

ant was a rrested and cha rged w ith agg ravate d unlawf

ul use of a weapon in case number 02 CR 6752. He was convicted of this offense on September 5, 2003. Defendant was subsequently charged with murder, conspirac y to commit murder, conspira cy to commit a

rmed rob bery , and con spiracy

to commit a

ggra vated kid naping in case numbers 02 CR 30237 and 02 CR 30238. Bail was set at $1,250,000, which required a 10% deposit with the clerk of the circuit court in the amount of $125,000. Mahmoud Saleh, defendant’s brother and surety , posted $125,000 as bail on behalf of defendant. The conditions of the ba il bond inc luded a r

equirem ent that d

efenda nt appea r to answe

r the cha rges in court unt il discharge or final order of c ourt, and that he not leave Illinois without the court' s permission. On October 26, 2004, the Immig ration and Naturalization Service (I NS) initiated deporta tion proc eeding s again st defen dant. The INS c harge d that def

endant w as subject to removal from the United States as a result of his conviction for aggravated unlawful use of a weapon in 2003 and took defendant into custody pending a final determination by an immigration judge. On November 10, 2004, the INS issued an or der for an agree d deportation. On February

2, 2005, defendant was deported from the United States to Jordan. On April 21, 2005, the trial cou rt in the in stant ca se issued a “no ba il” arre st warra

nt for de fendant

. On June 20, 2 005, the tr

ial cour t entere d a bond f

orfeitur e and issu ed a “no bail” ar rest

warran t for def endant. On July

19, 2005, d

efenda nt’s coun sel filed

a “Motion

For Entr y of Cash Refund to Surety.” I

n the motion, counsel alleged that as a result of defe ndant’s deportation, there wa s no possibl e way for def endant or his surety

, Mahmoud S aleh, to c ontinue to comply1-05-3362

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with the terms of the bond. The motion further states that, “[h]ad Immigr ation allowed the criminal procee dings to b e comple ted before depor

ting the Defend ant, Sale h would not

be in jeopardy of

losing the $125,000 bond he posted on behalf of the defendant.” The motion does not state that defendant requested the I NS to stay his deportation pending r esolution of the criminal case brought aga inst him. The trial court denied counsel’s request to refund defe ndant’s bond. The trial court entered judgment on the bond forf eiture nunc pro tunc to July 19, 2005. Defendant now appeals the trial court’s orde r denying his request to refund the bond. ANA LYSIS I. Jurisdiction Issue Initially , the State maintains that this court lacks jurisdiction to consider this appeal. The I llinois Cons titution pr ovides tha

t the appe llate cou

rt has jur isdiction t o hear a ppeals from both final judg

ments and

other or ders for which the

supreme court ru les permi t interloc utory appeals . See I ll. Const. 19 70, art. V I., § 6. An orde

r’s substa nce, and not its for

m, determines whether it is appealable. People v. Savory , 309 Ill. App. 3d 408, 411 (1999). An order is said to be final if it “ ‘ “disposes of the rights of the pa rties, either upon the entire controversy or

upon some definite and separate part thereof ” ’ [Citation].” In re Estate of French , 166 Ill . 2d 95 , 101 ( 1995) , quot ing Treece v. Shawnee Community Unit School District No. 84 , 39 Ill. 2d 136, 139 (1968). I n a criminal case, there is no final judgment until the imposition of sentence, and in the absence of that judgment, an a ppeal cannot be entertained except as specified in Supreme Court Rule 604 (210 Ill. 2d R. 604). People v. Dotson , 214 I ll. App. 3 d 637, 645 (1 991), citi ng People v. Flores , 128 Ill. 2d 66 (1989).1-05-3362

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The State characterizes the order being appealed from in the instant case as an “interlocutory or

der” and notes that Supreme Court Rule 604(c) sets forth specific procedures which a d efenda nt in a cr iminal ca se must fol low when a ppealing from an in

terlocu tory bail order entered prior to his conviction. One of those proce dures requires a defendant to file a verified motion for review in the appellate court. See 188 I ll. 2d 604(c)(2) (“[t]he appeal may be taken at any time before convi ction by filing a verifie d motion fo r revie w in the Ap

pellate Court”). In the instant case, the State a sserts, the surety fa iled to comply with that requirement because he “simply

filed a brief” rather than “a ve rified motion for review.” Accordingly, the State argues this court lacks jurisdiction to consider defenda nt’s appeal. We recognize that Rule 604(c) applies in criminal cases, is “[t]he only rule which establishes a rig

ht to revie

w interlo cutory

bail orde rs,” and “sets forth limited

and spec ific procedures for invoking that right.” People v. Beaty , 351 Ill. App. 3d 717, 722 (2004) . Specifically Rule 604(c ) authorizes a defendant, prior to his conviction, to “appeal to the Appellat e Court fr om an orde

r setting , modify

ing, re voking, deny

ing, or r efusing to modify

bail or the conditions thereof.” 188 Ill. 2d R. 604(c) (1). We also recognize this court does not have jurisdiction to review such an interlocutory order when a defendant fails to follow the proc edural requirements included in Rule 604(c). See Beaty , 351 Ill. App. 3d at 722. We hold, however, that the bond forfeiture judgment being a ppealed from in the instant case is not an interlocutory order “setting, modify

ing, revoking, deny

ing, or refusing to modify bail or the conditions thereof,” but, rather, is a final order ove r which we have jurisdiction. See People v. Montaigne , 86 Ill. App. 3d 220, 222 (1980).1-05-3362

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In Montaigne , the State appealed a trial court order vac ating a bond forfeiture judgment previously entere d against the defendant. Montaigne , 86 Ill. App. 3d at 221. The defenda nt argue d that the

order w as not app ealable because the State ’s righ

t to appea l was limite d to Supreme Court Rule 604(a), which did not authorize appeal of orders vac ating bond forfeiture judgments. Montaigne , 86 Ill. App. 3d at 222. The reviewing court rejected the defendant’s argument, concluding that the bond forf eiture judgment was a final order not subject to the requirements included in Supreme Court Rule 604. Montaigne , 86 Ill. App. 3d at 222. In addressing the

appealability of the bond f orfeiture judgment, the court recog nized that Rule 604(a) does not authorize the State to appeal orders vaca ting bond forfeiture judgments and that the State may not appea l in a criminal case unless authorized by a provision of Rule 604(a). Montaigne , 86 Ill. App. 3d at 222. The court conclude d, however, that a bond forfeiture proceeding is not a “criminal case” and that “the essence of such a proce eding is the entry of a civil judgment on a bond.” Montaigne , 86 Ill. App. 3d at 222. I n support of this conclusion, the court noted that “[t]he statute which provided for entry of the instant bond forfeiture judgment [citation] also provided for enforcement and collection of such judgments in the same manner as civil cases” and that the court “ha[d] previously found it appropriate to apply the Civil Practice Act to a proceeding to vacate a bond forfeiture.” Montaigne , 86 Ill. App. 3d at 222. Accordingly , the court concluded, “the right of appe al in such matters should be available to the State as in civil cases.” Montaigne , 86 Ill. App. 3d at 222. The order being appealed f rom in the instant case, as in Montaigne , is a bond forfeiture judgment. The order does not set, modify, r evoke, deny , or refuse to modify bail or a condition1-05-3362

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thereof, and thus defendant’s appeal of it is not subject to the re quirements of Supreme Court Rule 604(c). A s in Montaigne , the essence of the proceeding giving rise to the bond forfeiture judgment in the instant case was civil rather than criminal in nature . Indeed, the judgme nt forfeits the portion of the bond paid on defendant’s behalf a nd entitles the State to enforce the remaining unpaid portion. See 725 ILCS 5/110-7(g) (West 2002) (providing that “balance of the judgment [of forfeiture] may be enforced and collected in the same ma nner as a judgment entered in a civil action”). Accordingly , consistent with Montaigne , we hold that the bond forfeiture judgment on appeal before us qualifies as a final and appealable order over w hich we have jurisdiction. In a related a

rgument, the State contends that this court lacks jurisdiction to consider the instant appeal because Rule 604(c)(1) author izes only a defendant

to appeal from a bail order prior to this conviction, and “[i]n the instant appeal, the surety see ks to overturn an order of the trial court which denied him a refund of defenda nt's forfeited bond.” We reject the State’s argume nt for two separa te reas ons. Firs t, as pre

viously discusse d, the provisions of Rule 604(c)(1) are applicable to interlocutory orders and do not govern our review of the final judgmen t at issue i

n the insta

nt appea l. Second , even if

some alte

rnative legal a uthority precludes a nonintervening surety from appealing a bond forfeiture judgment, the surety

in the instant case (defendant’s brother) is not, contrar y to the State’s sugg estion, the party appe aling the judgment of forfeiture now on review . Both the notice of appeal and the appellant’s ope ning brief refer to defendant as the a ppellant in the instant case. Indeed, in both the notice of appeal and the opening brief, “defenda nt” “pray s” that we reverse the order of the trial court. Moreover,1-05-3362

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the specific relief defendant see ks on appeal in its appellate brief is for this court to “reverse [] the order of the trial court below and return the c ash bond to Mr. Albitar’s attorney s for disbursement to the surety, Mr. Albitar’ s brother.” The record refle cts the defendant, not the surety , is the appellant in the instant case. II . Forfeited Cash Bond I ssue Defend ant conte nds that bond forfe iture wa s inappro priate in the instan

t case “ because [he] was unable to appear through no fault of his own but, rather, throug h the actions of the United States Government.” “The decision whether to set aside or remit a forf eiture rests within the sound discretion of the district court and will be reversed only if the court acted arbitrarily or capriciously.” United States v. Gutierrez , 771 F.2d 1001, 1003 (7th Cir. 1985). Relief from forfeiture has bee n governed in I llinois by statute, and not by common law; to set aside a forfeiture, the condition of the statute must be met. People v. Garfie ld , 33 Ill. App. 2 d 164, 167 (1 961), citi ng People ex r el. Swanson v. Sullivan , 339 Ill. 146, 152 (1930). Section 110-7(g) of the Code of Criminal Procedure spec ifies the conditions under which a bond forfeiture judgment should be entere d, and the Illinois Supreme Court, in turn, has relied upon these conditions to determine whether such a judgment should be vac ated. See 725 I LCS 5/110-7( g) (Wes t 2004); People v. Sanders , 131 Ill. 2d 58, 64-66 (1989). Section 11 0-7(g)

states in r

elevant parts as follows: “If the acc

used does not comply with the conditions of the bail bond the court having jurisdiction shall enter an order1-05-3362

8 declaring the bail to be forfeited. Notice of such order of forfeiture shall be mailed forthwith to the accused at his last known address. If the accuse d does not appear and surrender to the cour t having jurisdict ion within 3 0 day s from the date of t he forf eiture or within such period satisfy the c ourt that appearance and surrende r by the accused is impossible and without his fault the court shall enter judgment for the State if the charge for which the bond was given was a felony

or misdemeanor.” 725 IL CS 5/110-7(g) (West 2004). The plain language of sec tion 110-7(g) requires the trial court to enter a judgment of forfeiture if, within 30 day s from the date of the order of forfe iture, the defendant does not appear and surr ender a nd fails to satisfy the trial court tha t his appe arance

and surr ender a re impossi

ble and without his fault. Thus, in order to vacate a bond forfeiture judg ment, a defendant who does not appea r within 30

day s from the

date of t he forf eiture mu st establi sh that he was unab le to appear during that time frame and tha t his inability to appear was not attributable to his own fault. Defendant argues that his failure to appear in court was not his fault because the I NS had taken him into custody and had starte d removal proceedings ag ainst him. Defendant further argue s that ther

e was not hing “v oluntary

” about hi s acceptance of

a volunta ry departu re beca use his removal was inevitable, and it was therefore impossible for him to resolve his pending criminal matter. We reject defend

ant’s ar gument a s a revie

w of the r ecord r eflects that def endant f ailed to1-05-3362

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present evidence to the trial court sufficient to establish that he wa s unable to appear before the court within 30 days of the f orfeiture order through no fault of his own. In the instant case, defendant was taken into custody by the I NS and agreed to a voluntary deportation more than two months before his February 2, 2005, departure. The rec ord, howe ver, doe s not indic ate that defenda nt or his su

rety made any

effort d uring those two mon

ths to cont

act the tr ial cour t to explain his situation. Indeed, t he record does not reflect that defe ndant informed the trial court that he had agreed to a voluntary departure when his case appea red on the trial court’s call on Decemb er 15, 20 04, or on Jan uary 10, 2005, or that de fendant informed the trial court at any time prior to his departure that he was in the custody of the INS and had ag

reed to a voluntary departure. See Sanders , 131 Ill. 2d at 65 (affirming bond f orfeiture and holding that defendant’s federal incarceration did not preve nt him from timely notify ing trial court of his unavailability ).

Furthermore, w e note that the record does not indicate that defenda nt, who was in the custody of the I NS as the r

esult of h is own cri minal conduct, re quested a stay of depor tation in order to resolve his pending criminal charg es. See In re Sanford & Sons Bail Bonds, Inc. , 96 S.W.3d 199, 205 (Tenn. Crim. App. 2002) (noting that surety who is aware of ongoing deporta tion proc eeding s and is se eking to set aside forfeit ure judg ment has o

bligation to demonstrate that he reasonably attempted to stay deporta tion pending resolution of criminal case). Defend

ant has f ailed to id

entify evidenc e indica

ting tha t his failu re to app ear wa s due to something

other tha n his own f

ault. We find People v. Torres , 289 Ill. App. 3d 513 (1997), instructive. On appea l the1-05-3362

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defendant argued he wa s unable to stand trial because he was “eff ectively depor

ted” when granted voluntary

departure. Torres , 289 Ill. App. 3d at 518. The court in Torres rejected that argume nt and fou

nd that de fendant

failed to inform the

state co urt of the decision by t he I NS to grant him voluntary

departure, noting that defendant did not seek to re solve the pending charges against him. Torres , 289 I ll. App. 3d at 518-19 . Similarly

, in the ins tant cas e, defe

ndant cho se voluntary depar

ture and took no steps to resolve the pending charg e. The provisions of defendant’s bail bond specifically advised the surety ( Saleh) that defendant’s failure to appear in cour t could result in a forfeiture of bail. Saleh signed a se ction of the bond that states in relevant part: “I understand that if the defendant fails to comply with the conditions reflected on this bond, I may lose all of my money should the court enter a forfeiture of bail or der.” ( Emphasis i

n original.) By

agree ing to pos t defend

ant’s bon d, Saleh k nowingl y assumed the risk of defendant’s failure to appea r in court. As previously noted, the re cord does not reflect that Saleh made any effort to notify the c ourt of defendant’s voluntary departure. “In most case s, the set

ting asi de of a f

orfeitur e or its re mission whi le the de fendant is still at large would undermine the purpose of ba il bonds, i.e. , to insure the presence of the accuse d.” Gutierrez , 771 F.2d at 1004. We believe, based upon the totality of the circumstances presented by t he instan t case, t hat settin g aside the forf eiture ju dgment a nd retur ning the bond to the

surety would be i

nconsiste nt with tha

t purpose and could

potentia lly e ncourag e future

defenda nts to disregard the conditions of their bail bonds. As the district court noted in United States v. Gambino : “[T]he Court is mindful of the effect that a remission1-05-3362

11 would hav e on the in

tegrity of the ba il sy stem. I f individuals charged with notorious crimes who are r eleased on bail after the posting of a large bond are led to believe that a portion of that bond will be remitted in the event of flight simply because the forfeiture involves a large a mount of money, the cre dibility of the bail system would be substantially undermined. While the appearance bond clearly

is not to be used as punishment for the underlying

offense of jumping bail, the Government does have a legitimate interest in enforcing its rights under the bond in order to deter such conduct by

other future defendants.” United States v. Gambino , No. 9S 88 Cr. 919 (PKL), slip op. at 8 (S.D.N.Y. August 5, 1993). CONCLUSIO N We find no abuse of discretion by the trial court’s decision not to return defendant’s forfeited cash bond to defendant’s attorney s for disbursement to the surety , defendant’s brother. For the reasons previously discussed, we affirm the trial court’s order de nying a refund of defendant’s bond. Affirmed. TULL Y and GALL

AGHER, JJ., concur.1-05-3362

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