{ "id": 7328751, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TAREK ALBITAR, Defendant-Appellant", "name_abbreviation": "People v. Albitar", "decision_date": "2007-06-29", "docket_number": "No. 1\u201405\u20143362", "first_page": "718", "last_page": "726", "citations": [ { "type": "official", "cite": "374 Ill. App. 3d 718" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "289 Ill. App. 3d 513", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 351065 ], "weight": 3, "year": 1997, "pin_cites": [ { "page": "518" }, { "page": "518-19" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/289/0513-01" ] }, { "cite": "96 S.W.3d 199", "category": "reporters:state_regional", "reporter": "S.W.3d", "case_ids": [ 9358898 ], "year": 2002, "pin_cites": [ { "page": "205", "parenthetical": "noting that surety who is aware of ongoing deportation proceedings and is seeking to set aside forfeiture judgment has obligation to demonstrate that he reasonably attempted to stay deportation pending resolution of criminal case" } ], "opinion_index": 0, "case_paths": [ "/sw3d/96/0199-01" ] }, { "cite": "131 Ill. 2d 58", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5569541 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "64-66" }, { "page": "65", "parenthetical": "affirming bond forfeiture and holding that defendant's federal incarceration did not prevent him from timely notifying trial court of his unavailability" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/131/0058-01" ] }, { "cite": "339 Ill. 146", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5241075 ], "year": 1930, "pin_cites": [ { "page": "152" } ], "opinion_index": 0, "case_paths": [ "/ill/339/0146-01" ] }, { "cite": "33 Ill. App. 2d 164", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5235306 ], "year": 1961, "pin_cites": [ { "page": "167" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/33/0164-01" ] }, { "cite": "771 F.2d 1001", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 338231 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "1003" }, { "page": "1004" } ], "opinion_index": 0, "case_paths": [ "/f2d/771/1001-01" ] }, { "cite": "86 Ill. App. 3d 220", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3188648 ], "weight": 8, "year": 1980, "pin_cites": [ { "page": "222" }, { "page": "221" }, { "page": "222" }, { "page": "222" }, { "page": "222" }, { "page": "222" }, { "page": "222" }, { "page": "222" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/86/0220-01" ] }, { "cite": "351 Ill. App. 3d 717", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1083914 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "722" }, { "page": "722" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/351/0717-01" ] }, { "cite": "128 Ill. 2d 66", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3229038 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/ill-2d/128/0066-01" ] }, { "cite": "214 Ill. App. 3d 637", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5299039 ], "year": 1991, "pin_cites": [ { "page": "645" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/214/0637-01" ] }, { "cite": "39 Ill. 2d 136", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2858115 ], "year": 1968, "pin_cites": [ { "page": "139" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/39/0136-01" ] }, { "cite": "166 Ill. 2d 95", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 198913 ], "year": 1995, "pin_cites": [ { "page": "101" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/166/0095-01" ] }, { "cite": "309 Ill. App. 3d 408", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 349602 ], "year": 1999, "pin_cites": [ { "page": "411" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/309/0408-01" ] } ], "analysis": { "cardinality": 776, "char_count": 18497, "ocr_confidence": 0.801, "pagerank": { "raw": 6.487335311298252e-08, "percentile": 0.3991748167557259 }, "sha256": "9aa274be2415212745eb1ad06f4638b97713c36a58615382dbdd92d3f16c682e", "simhash": "1:d39fe744f74fd324", "word_count": 3091 }, "last_updated": "2023-07-14T18:10:59.295026+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "TULLY and GALLAGHER, JJ., concur." ], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TAREK ALBITAR, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE O\u2019MARA FROSSARD\ndelivered the opinion of the court:\nDefendant Tarek Albitar appeals the trial court\u2019s 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 \u201cwas unable to appear through no fault of his own but, rather, through the actions of the United States Government.\u201d For the reasons that follow, we affirm.\nBACKGROUND\nDefendant, 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\u2019s status was adjusted to that of a lawful permanent resident.\nOn 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.\nDefendant 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. Mah-moud Saleh, d\u00e9fendant\u2019s 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\u2019s permission.\nOn 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 \u201cno bail\u201d arrest warrant for defendant.\nOn June 20, 2005, the trial court entered a bond forfeiture and issued a \u201cno bail\u201d arrest warrant for defendant. On July 19, 2005, defendant\u2019s counsel filed a \u201cMotion For Entry of Cash Refund to Surety.\u201d In the motion, counsel alleged that as a result of defendant\u2019s 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, \u201c[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.\u201d 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\u2019s request to refund defendant\u2019s bond. The trial court entered judgment on the bond forfeiture nunc pro tunc to July 19, 2005.\nDefendant now appeals the trial court\u2019s order denying his request to refund the bond.\nANALYSIS\nI. Jurisdiction Issue\nInitially, the State maintains that this court lacks jurisdiction to consider this appeal.\nThe 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, \u00a76. An order\u2019s substance, and not its form, determines whether it is appealable. People v. Savory, 309 Ill. App. 3d 408, 411 (1999). An order is said to be final if it \u201c \u2018 \u201cdisposes of the rights of the parties, either upon the entire controversy or upon some definite and separate part thereof.\u201d \u2019 [Citation.]\u201d In re Estate of French, 166 Ill. 2d 95, 101 (1995), quoting Treece v. Shawnee Community Unit School District No. 84, 39 Ill. 2d 136, 139 (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 (1991), citing People v. Flores, 128 Ill. 2d 66 (1989).\nThe State characterizes the order being appealed from in the instant case as an \u201cinterlocutory order\u201d 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 R. 604(c)(2) (\u201c[t]he appeal may be taken at any time before conviction by filing a verified motion for review in the Appellate Court\u201d). In the instant case, the State asserts, the surety failed to comply with that requirement because he \u201csimply filed a brief\u2019 rather than \u201ca verified motion for review.\u201d Accordingly, the State argues this court lacks jurisdiction to consider defendant\u2019s appeal.\nWe recognize that Rule 604(c) applies in criminal cases, is \u201c[t]he only rule which establishes a right to review interlocutory bail orders,\u201d and \u201csets forth limited and specific procedures for invoking that right.\u201d People v. Beaty, 351 Ill. App. 3d 717, 722 (2004). Specifically Rule 604(c) authorizes a defendant, prior to his conviction, to \u201cappeal to the Appellate Court from an order setting, modifying, revoking, denying, or refusing to modify bail or the conditions thereof.\u201d 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. We hold, however, that the bond forfeiture judgment being appealed from in the instant case is not an interlocutory-order \u201csetting, modifying, revoking, denying, or refusing to modify bail or the conditions thereof\u2019 but, rather, is a final order over which we have jurisdiction. See People v. Montaigne, 86 Ill. App. 3d 220, 222 (1980).\nIn 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. The defendant argued that the order was not appealable because the State\u2019s 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. The reviewing court rejected the defendant\u2019s 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.\nIn 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. The court concluded, however, that a bond forfeiture proceeding is not a \u201ccriminal case\u201d and that \u201cthe essence of such a proceeding is the entry of a civil judgment on a bond.\u201d Montaigne, 86 Ill. App. 3d at 222. In support of this conclusion, the court noted that \u201c[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\u201d and that the court \u201cha[d] previously found it appropriate to apply the Civil Practice Act to a proceeding to vacate a bond forfeiture.\u201d Montaigne, 86 Ill. App. 3d at 222. Accordingly, the court concluded, \u201cthe right of appeal in such matters should be available to the State as in civil cases.\u201d Montaigne, 86 Ill. App. 3d at 222.\nThe 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\u2019s 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\u2019s behalf and entitles the State to enforce the remaining unpaid portion. See 725 ILCS 5/110 \u2014 7(g) (West 2002) (providing that \u201cbalance of the judgment [of forfeiture] may be enforced and collected in the same manner as a judgment entered in a civil action\u201d). 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.\nIn a related argument, the State contends that this court lacks jurisdiction to consider the instant appeal because Rule 604(c)(1) authorizes only a defendant to appeal from a bail order prior to this conviction, and \u201c[i]n the instant appeal, the surety seeks to overturn an order of the trial court which denied him a refund of defendant\u2019s forfeited bond.\u201d We reject the State\u2019s argument for two separate reasons. First, as previously discussed, the provisions of Rule 604(c)(1) are applicable to interlocutory orders and do not govern our review of the final judgment at issue in the instant appeal. Second, even if some alternative legal authority precludes a nonintervening surety from appealing a bond forfeiture judgment, the surety in the instant case (defendant\u2019s brother) is not, contrary to the State\u2019s suggestion, the party appealing the judgment of forfeiture now on review. Both the notice of appeal and the appellant\u2019s opening brief refer to defendant as the appellant in the instant case. Indeed, in both the notice of appeal and the opening brief, \u201cdefendant\u201d \u201cprays\u201d that we reverse the order of the trial court. Moreover, the specific relief defendant seeks on appeal in its appellate brief is for this court to \u201creverse[ ] the order of the trial court below and return the cash bond to Mr. Albitar\u2019s attorneys for disbursement to the surety, Mr. Albitar\u2019s brother.\u201d The record reflects the defendant, not the surety, is the appellant in the instant case.\nII. Forfeited Cash Bond Issue\nDefendant contends that bond forfeiture was inappropriate in the instant case \u201cbecause [he] was unable to appear through no fault of his own but, rather, through the actions of the United States Government.\u201d\n\u201cThe decision whether to set aside or remit a forfeiture rests within the sound discretion of the district court and will be reversed only if the court acted arbitrarily or capriciously.\u201d United States v. Gutierrez, 771 F.2d 1001, 1003 (7th Cir. 1985). Relief from forfeiture has been governed in Illinois by statute, and not by common law; to set aside a forfeiture, the condition of the statute must be met. People v. Garfield, 33 Ill. App. 2d 164, 167 (1961), citing People ex rel. Swanson v. Sullivan, 339 Ill. 146, 152 (1930).\nSection 110 \u2014 7(g) of the Code of Criminal Procedure specifies the conditions under which a bond forfeiture judgment should be entered, and the Illinois Supreme Court, in turn, has relied upon these conditions to determine whether such a judgment should be vacated. See 725 ILCS 5/110 \u2014 7(g) (West 2004); People v. Sanders, 131 Ill. 2d 58, 64-66 (1989).\nSection 110 \u2014 7(g) states in relevant parts as follows:\n\u201cIf the accused does not comply with the conditions of the bail bond the court having jurisdiction shall enter an order 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 accused does not appear and surrender to the court having jurisdiction within 30 days from the date of the forfeiture or within such period satisfy the court that appearance and surrender 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.\u201d 725 ILCS 5/110 \u2014 7(g) (West 2004).\nThe plain language of section 110 \u2014 7(g) requires the trial court to enter a judgment of forfeiture if, within 30 days from the date of the order of forfeiture, the defendant does not appear and surrender and fails to satisfy the trial court that his appearance and surrender are impossible and without his fault. Thus, in order to vacate a bond forfeiture judgment, a defendant who does not appear within 30 days from the date of the forfeiture must establish that he was unable to appear during that time frame and that his inability to appear was not attributable to his own fault.\nDefendant argues that his failure to appear in court was not his fault because the INS had taken him into custody and had started removal proceedings against him. Defendant further argues that there was nothing \u201cvoluntary\u201d about his acceptance of a voluntary departure because his removal was inevitable, and it was therefore impossible for him to resolve his pending criminal matter.\nWe reject defendant\u2019s argument as a review of the record reflects that defendant failed to present evidence to the trial court sufficient to establish that he was unable to appear before the court within 30 days of the forfeiture order through no fault of his own. In the instant case, defendant was taken into custody by the INS and agreed to a voluntary deportation more than two months before his February 2, 2005, departure. The record, however, does not indicate that defendant or his surety made any effort during those two months to contact the trial court to explain his situation. Indeed, the record does not reflect that defendant informed the trial court that he had agreed to a voluntary departure when his case appeared on the trial court\u2019s call on December 15, 2004, or on January 10, 2005, or that defendant informed the trial court at any time prior to his departure that he was in the custody of the INS and had agreed to a voluntary departure. See Sanders, 131 Ill. 2d at 65 (affirming bond forfeiture and holding that defendant\u2019s federal incarceration did not prevent him from timely notifying trial court of his unavailability).\nFurthermore, we note that the record does not indicate that defendant, who was in the custody of the INS as the result of his own criminal conduct, requested a stay of deportation in order to resolve his pending criminal charges. 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 deportation proceedings and is seeking to set aside forfeiture judgment has obligation to demonstrate that he reasonably attempted to stay deportation pending resolution of criminal case). Defendant has failed to identify evidence indicating that his failure to appear was due to something other than his own fault.\nWe find People v. Torres, 289 Ill. App. 3d 513 (1997), instructive. On appeal the defendant argued he was unable to stand trial because he was \u201ceffectively deported\u201d when granted voluntary departure. Torres, 289 Ill. App. 3d at 518. The court in Torres rejected that argument and found that defendant failed to inform the state court of the decision by the INS to grant him voluntary departure, noting that defendant did not seek to resolve the pending charges against him. Torres, 289 Ill. App. 3d at 518-19. Similarly, in the instant case, defendant chose voluntary departure and took no steps to resolve the pending charge.\nThe provisions of defendant\u2019s bail bond specifically advised the surety (Saleh) that defendant\u2019s failure to appear in court could result in a forfeiture of bail. Saleh signed a section of the bond that states in relevant part: \u201cI 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 order.\u201d (Emphasis in original.) By agreeing to post defendant\u2019s bond, Saleh knowingly assumed the risk of defendant\u2019s failure to appear in court. As previously noted, the record does not reflect that Saleh made any effort to notify the court of defendant\u2019s voluntary departure.\n\u201cIn most cases, the setting aside of a forfeiture or its remission while the defendant is still at large would undermine the purpose of bail bonds, i.e., to insure the presence of the accused.\u201d Gutierrez, 771 F.2d at 1004. We believe, based upon the totality of the circumstances presented by the instant case, that setting aside the forfeiture judgment and returning the bond to the surety would be inconsistent with that purpose and could potentially encourage future defendants to disregard the conditions of their bail bonds. As the district court noted in United States v. Gambino:\n\u201c[T]he Court is mindful of the effect that a remission would have on the integrity of the bail system. If individuals charged with notorious crimes who are released 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 amount of money, the credibility 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.\u201d United States v. Gambino, No. 9S 88 Cr. 919 (PKL), slip op. at 8 (S.D.N.Y. August 5, 1993).\nCONCLUSION\nWe find no abuse of discretion by the trial court\u2019s decision not to return defendant\u2019s forfeited cash bond to defendant\u2019s attorneys for disbursement to the surety, defendant\u2019s brother. For the reasons previously discussed, we affirm the trial court\u2019s order denying a refund of defendant\u2019s bond.\nAffirmed.\nTULLY and GALLAGHER, JJ., concur.", "type": "majority", "author": "JUSTICE O\u2019MARA FROSSARD" } ], "attorneys": [ "Azulay, Horn & Seiden, LLC, of Chicago (Roland Lara and Glenn Seiden, of counsel), for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (James E. Fitzgerald, Michele Grimaldi Stein, and Miles J. Keleher, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TAREK ALBITAR, Defendant-Appellant.\nFirst District (5th Division)\nNo. 1\u201405\u20143362\nOpinion filed June 29, 2007.\nAzulay, Horn & Seiden, LLC, of Chicago (Roland Lara and Glenn Seiden, of counsel), for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (James E. Fitzgerald, Michele Grimaldi Stein, and Miles J. Keleher, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0718-01", "first_page_order": 736, "last_page_order": 744 }