People v. Albitar
| Decision Date | 29 June 2007 |
| Docket Number | No. 1-05-3362.,1-05-3362. |
| Citation | 872 N.E.2d 530 |
| Parties | The PEOPLE of The State of Illinois, Plaintiff-Appellee, v. Tarek ALBITAR, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Azulay, Horn & Seiden, LLC, Chicago (Roland Lara and Glenn Seiden, of counsel), for Appellant.
Richard A. Devine, Cook County State's Attorney, Chicago (James E. Fitzgerald, Michele Grimaldi Stein and Miles J. Keleher, of counsel), for Appellee.
Defendant Tarek Albitar appeals the trial court's order denying him a refund of his bond to his surety. Defendant was deported by the Immigration and Naturalization Service before his trial was set to begin. Defendant argues that bond forfeiture was inappropriate because he "was unable to appear through no fault of his own but, rather, through the actions of the United States Government." For the reasons that follow, we affirm.
Defendant, Tarek Albitar, is a native and citizen of Jordan. He is not a citizen of the United States. On November 13, 1987, defendant was admitted to the United States as a nonimmigrant visitor. On May 2, 1997, defendant's status was adjusted to that of a lawful permanent resident.
On October 31, 2002, defendant was arrested and charged with aggravated unlawful 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, conspiracy to commit murder, conspiracy to commit armed robbery, and conspiracy to commit aggravated kidnaping 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 bail bond included a requirement that defendant appear to answer the charges in court until discharge or final order of court, and that he not leave Illinois without the court's permission.
On October 26, 2004, the Immigration and Naturalization Service (INS) initiated deportation proceedings against defendant. The INS charged that defendant was 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 order for an agreed deportation. On February 2, 2005, defendant was deported from the United States to Jordan. On April 21, 2005, the trial court in the instant case issued a "no bail" arrest warrant for defendant.
On June 20, 2005, the trial court entered a bond forfeiture and issued a "no bail" arrest warrant for defendant. On July 19, 2005, defendant's counsel filed a "Motion For Entry of Cash Refund to Surety." In the motion, counsel alleged that as a result of defendant's deportation, there was no possible way for defendant or his surety, Mahmoud Saleh, to continue to comply with the terms of the bond. The motion further states that, "[h]ad Immigration allowed the criminal proceedings to be completed before deporting the Defendant, Saleh 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 INS to stay his deportation pending resolution of the criminal case brought against him. The trial court denied counsel's request to refund defendant's bond. The trial court entered judgment on the bond forfeiture nunc pro tunc to July 19, 2005.
Defendant now appeals the trial court's order denying his request to refund the bond.
Initially, the State maintains that this court lacks jurisdiction to consider this appeal.
The Illinois Constitution provides that the appellate court has jurisdiction to hear appeals from both final judgments and other orders for which the supreme court rules permit interlocutory appeals. See Ill. Const.1970, art. VI., § 6. An order's substance, and not its form, determines whether it is appealable. People v. Savory, 309 Ill.App.3d 408, 411, 242 Ill. Dec. 731, 722 N.E.2d 220 (1999). An order is said to be final if it "`"disposes of the rights of the parties, either upon the entire controversy or upon some definite and separate part thereof"' [Citation]." In re Estate of French, 166 Ill.2d 95, 101, 209 Ill. Dec. 677, 651 N.E.2d 1125 (1995), quoting Treece v. Shawnee Community Unit School District No. 84, 39 Ill.2d 136, 139, 233 N.E.2d 549 (1968). In a criminal case, there is no final judgment until the imposition of sentence, and in the absence of that judgment, an appeal cannot be entertained except as specified in Supreme Court Rule 604 (210 Ill.2d R. 604). People v. Dotson, 214 Ill.App.3d 637, 645, 158 Ill.Dec. 349, 574 N.E.2d 143 (1991), citing People v. Flores, 128 Ill.2d 66, 131 Ill.Dec. 106, 538 N.E.2d 481 (1989).
The State characterizes the order being appealed from in the instant case as an "interlocutory order" and notes that Supreme Court Rule 604(c) sets forth specific procedures which a defendant in a criminal case must follow when appealing from an interlocutory bail order entered prior to his conviction. One of those procedures requires a defendant to file a verified motion for review in the appellate court. See 188 Ill.2d 604(c)(2) (). In the instant case, the State asserts, the surety failed to comply with that requirement because he "simply filed a brief" rather than "a verified motion for review." Accordingly, the State argues this court lacks jurisdiction to consider defendant's appeal.
We recognize that Rule 604(c) applies in criminal cases, is "[t]he only rule which establishes a right to review interlocutory bail orders," and "sets forth limited and specific procedures for invoking that right." People v. Beaty, 351 Ill.App.3d 717, 722, 286 Ill.Dec. 602, 814 N.E.2d 590 (2004). Specifically Rule 604(c) authorizes a defendant, prior to his conviction, to "appeal to the Appellate Court from an order setting, modifying, revoking, denying, or refusing 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 procedural requirements included in Rule 604(c). See Beaty, 351 Ill.App.3d at 722, 286 Ill.Dec. 602, 814 N.Ed.2d 590. We hold, however, that the bond forfeiture judgment being appealed from in the instant case is not an interlocutory order "setting, modifying, revoking, denying, or refusing to modify bail or the conditions thereof," but, rather, is a final order over which we have jurisdiction. See People v. Montaigne, 86 Ill.App.3d 220, 222, 41 Ill.Dec. 609, 407 N.E.2d 1107 (1980).
In Montaigne, the State appealed a trial court order vacating a bond forfeiture judgment previously entered against the defendant. Montaigne, 86 Ill.App.3d at 221, 41 Ill.Dec. 609, 407 N.E.2d 1107. The defendant argued that the order was not appealable because the State's right to appeal was limited to Supreme Court Rule 604(a), which did not authorize appeal of orders vacating bond forfeiture judgments. Montaigne, 86 Ill.App.3d at 222, 41 Ill.Dec. 609, 407 N.E.2d 1107. The reviewing court rejected the defendant's argument, concluding that the bond forfeiture judgment was a final order not subject to the requirements included in Supreme Court Rule 604. Montaigne, 86 Ill.App.3d at 222, 41 Ill.Dec. 609, 407 N.E.2d 1107.
In addressing the appealability of the bond forfeiture judgment, the court recognized that Rule 604(a) does not authorize the State to appeal orders vacating bond forfeiture judgments and that the State may not appeal in a criminal case unless authorized by a provision of Rule 604(a). Montaigne, 86 Ill.App.3d at 222, 41 Ill.Dec. 609, 407 N.E.2d 1107. The court concluded, however, that a bond forfeiture proceeding is not a "criminal case" and that "the essence of such a proceeding is the entry of a civil judgment on a bond." Montaigne, 86 Ill.App.3d at 222, 41 Ill.Dec. 609, 407 N.E.2d 1107. In 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, 41 Ill.Dec. 609, 407 N.E.2d 1107. Accordingly, the court concluded, "the right of appeal in such matters should be available to the State as in civil cases." Montaigne, 86 Ill.App.3d at 222, 41 Ill.Dec. 609, 407 N.E.2d 1107.
The order being appealed from in the instant case, as in Montaigne, is a bond forfeiture judgment. The order does not set, modify, revoke, deny, or refuse to modify bail or a condition thereof, and thus defendant's appeal of it is not subject to the requirements of Supreme Court Rule 604(c). As 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 judgment forfeits the portion of the bond paid on defendant's behalf and entitles the State to enforce the remaining unpaid portion. See 725 ILCS 5/110-7(g) (West 2002) (). Accordingly, consistent with Montaigne, we hold that the bond forfeiture judgment on appeal before us qualifies as a final and appealable order over which we have jurisdiction.
In a related argument, the State contends that this court lacks jurisdiction to consider the instant appeal because Rule 604(c)(1)...
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