                NOS. 4-08-0464, 4-08-0465 cons.     Filed 12/24/09

                     IN THE APPELLATE COURT

                              OF ILLINOIS

                           FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,    )    Appeal from
          Plaintiff-Appellant,          )    Circuit Court of
          v. (No. 4-08-0464)            )    Macon County
ONE THOUSAND TWO HUNDRED FORTY          )    No. 08MR14
DOLLARS ($1,240) UNITED STATES          )
CURRENCY,                               )
          Defendant-Appellee.           )
-----------------------------------     )
THE PEOPLE OF THE STATE OF ILLINOIS,    )    No. 07MR530
          Plaintiff-Appellant,          )
          v. (No. 4-08-0465)            )
FOUR THOUSAND EIGHT HUNDRED FIFTY       )
DOLLARS ($4,850) UNITED STATES          )    Honorable
CURRENCY,                               )    Timothy J. Steadman,
          Defendant-Appellee.           )    Judge Presiding.
_________________________________________________________________

                MODIFIED UPON DENIAL OF REHEARING

          JUSTICE MYERSCOUGH delivered the opinion of the court:

          In January 2008, in case No. 08-MR-14, the State

initiated nonjudicial forfeiture proceedings regarding $1,240 in

United States currency police seized from Leland Deviner pursuant

to the Drug Asset Forfeiture Procedure Act (Act) (725 ILCS 150/1

through 14 (West 2006)).   In February 2008, having received no

claim from Deviner for return of the currency, the State declared

it nonjudicially forfeited.    In March 2008, Deviner filed a claim

on the property pursuant to section 14 of the Act (725 ILCS

150/14 (West 2006)) and a motion for judicial review.   In re-

sponse, the State filed a motion to dismiss Deviner's claim on
the currency.

          In August 2007, in case No. 07-MR-530, the State

initiated nonjudicial forfeiture proceedings regarding $4,850 in

United States currency that law-enforcement agents seized from

Deeandre Woodland pursuant to the Act (725 ILCS 150/1 through 14

(West 2006)).   In October 2007, after receiving notice of pending

nonjudicial forfeiture, Woodland filed a combined claim on the

property and a motion to dismiss the forfeiture action as un-

timely.

          On May 13, 2008, the trial court held consecutive

hearings on Deviner's and Woodland's motions.   Following the

hearings, the court deemed the notice of nonjudicial forfeiture

the State provided to Deviner and Woodland, and thereby the

forfeitures themselves, untimely.   The State appealed the ruling

as to Deviner's motion (No. 4-08-0464) and that as to Woodland's

motion (No. 4-08-0465).

           Because both cases present the same issue on appeal,

we consolidate them for purposes of our review.   We dismiss for

lack of jurisdiction.

                           I. BACKGROUND

           A. Case No. 08-MR-14 (Appeal No. 4-08-0464)

          On August 23, 2007, Decatur police performed a traffic

stop on a vehicle driven by Deviner.   During the stop, Deviner

consented to a search of the vehicle, wherein police discovered


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cannabis and $1,240 in United States currency.    Police seized the

currency and on January 11, 2008, 141 days later, notified the

Macon County State's Attorney of the seizure.    That same day, the

State's Attorney sent Deviner notice of the pending forfeiture,

which (1) described the seized property, i.e., $1,240 in United

States currency; (2) described the date and location of when and

where police seized the property; and (3) informed Deviner the

property was subject to forfeiture under either the Cannabis

Control Act (720 ILCS 550/1 through 19 (West 2006)) or the

Illinois Controlled Substances Act (720 ILCS 570/100 through 603

(West 2006)).   Deviner did not respond to the notice of pending

forfeiture.

          On February 19, 2008, 39 days after the State's Attor-

ney notified Deviner of the pending forfeiture, the State's

Attorney declared the currency nonjudicially forfeited and sent

Deviner notice.   Deviner filed a timely motion for judicial

review of the forfeiture and an accompanying section 6(C) claim

for the currency in accordance with section 14 of the Act (725

ILCS 150/14 (West 2006)).   In his motion, Deviner argued the in

rem proceeding against him was untimely pursuant to sections 5

and 6(A) (725 ILCS 150/5, 6(A) (West 2006)).    In response, the

State filed a motion to dismiss asserting Deviner's claim was

"insufficient as a matter of law" because it failed to (1) "set

forth the date, identity of the transferor, and circumstances of


                               - 3 -
[Deviner's] acquisition of the interest in the property" and (2)

"set forth all essential facts supporting each assertion."     The

State's motion did not fault Deviner for failing to file a cost

bond or an indigency affidavit as required by section 6(C)(2) of

the Act (725 ILCS 150/6(C)(2) (West 2006)).



          B. Case No. 07-MR-530 (Appeal No. 4-08-0465)

          On April 18, 2007, law-enforcement agents in Decatur

seized $4,850 in United States currency from Woodland.   The

specific circumstances surrounding the seizure are not reflected

in the record on appeal, nor does the record reflect when law-

enforcement agents notified the Macon County State's Attorney of

the seizure.   On August 30, 2007, 134 days after the seizure, the

State's Attorney sent Woodland notice of the pending forfeiture,

which (1) described the seized property, i.e., $4,850 in United

States currency; (2) described the date and location of when and

where law-enforcement agents seized the property; and (3) in-

formed Woodland the property was subject to forfeiture under

either the Cannabis Control Act (720 ILCS 550/1 through 19 (West

2006)) or the Illinois Controlled Substances Act (720 ILCS

570/100 through 603 (West 2006)).

          The State never issued a declaration of nonjudicial

forfeiture regarding the seized $4,850.   On October 11, 2007,

Woodland filed with the clerk of the court (1) an indigency


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affidavit in lieu of a cost bond as required by section 6(C)(2)

of the Act (725 ILCS 150/6(C)(2) (West 2006)), (2) a claim on the

seized property under section 6(C)(1) (725 ILCS 150/6(C)(1) (West

2006)), and (3) a motion to dismiss the State's forfeiture action

as untimely pursuant to the time limits set forth in sections 5

and 6(A) of the Act (725 ILCS 150/5, 6(A) (West 2006)).

          C. The Trial Court's Finding of Untimeliness

          The trial court held consecutive hearings in case Nos.

08-MR-14 and 07-MR-530 regarding the timeliness of initiating

forfeiture proceedings under sections 5 and 6(A) of the Act.    In

June 2008, the court entered a written order dismissing the in

rem forfeiture proceedings as untimely.   The court reasoned the

52- and 45-day time limits set forth in sections 5 and 6(A) of

the Act were mandatory, not permissive, and thus the State's

Attorney's failure to initiate forfeiture proceedings against

Deviner and Woodland within 97 days was untimely.

          These appeals followed.

                          II. ANALYSIS

          On appeal, the State contends the trial court erred in

dismissing the in rem forfeiture proceedings as untimely.   Spe-

cifically, the State argues the court improperly applied the

collective 97-day time limit during which sections 5 and 6(A) of

the Act (725 ILCS 150/5, 6(A) (West 2006)) mandate law-enforce-

ment agencies notify the State's Attorney's office of seized


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property subject to forfeiture and the State's Attorney's office

notify property owners and interest holders their seized property

is subject to forfeiture.    Rather, the State argues the court

should have applied the five-year statute of limitation from

section 9(L) (725 ILCS 150/9(L) (West 2006)).    We decline to

address the State's arguments, as we find that we lack jurisdic-

tion over this matter.

              A. Forfeiture Procedures Under the Act

           A brief overview of the forfeiture procedures set forth

in the Act is necessary to understand the case at bar.

           Enacted to deter drug abuse and trafficking within

Illinois (725 ILCS 150/2 (West 2006)), the Act sets out both

nonjudicial and judicial procedures for forfeiting property

seized by law enforcement.    Pursuant to the Act, the following

forfeiture proceedings apply to seized nonreal property valued

less than $20,000.

           First, "[t]he law[-]enforcement agency seizing the

property *** shall, within 52 days of seizure, notify the State's

Attorney."   725 ILCS 150/5 (West 2006).   After receiving notice

from the law-enforcement agency, the State's Attorney has 45 days

in which to notify all known interest holders of pending forfei-

ture.   725 ILCS 150/6(A) (West 2006).   Notice is effective upon,

inter alia, mailing of the written notice of pending forfeiture

(725 ILCS 150/4(B) (West 2006)), which must include details


                                - 6 -
describing the property, circumstances of the seizure, and a

summary of applicable procedures and procedural rights (725 ILCS

150/6(B) (West 2006)).

           Upon effective notice, persons claiming an interest in

the property have 45 days in which to (1) file a claim with the

State's Attorney and (2) deposit with the State's Attorney either

a cost bond or an indigency affidavit.   725 ILCS 150/6(C)(1),

(C)(2) (West 2006).   Once an interest holder files a claim and

deposits a cost bond, the State's Attorney "shall institute

judicial in rem forfeiture proceedings *** within 45 days."    725

ILCS 150/6(C)(2) (West 2006).   After the State's Attorney does

so, the procedures set forth under section 9 of the Act apply.

See 725 ILCS 150/9 (West 2006).

           Judicial forfeiture proceedings are initiated when a

State's Attorney files a verified complaint for forfeiture under

section 9.   The State must proceed with (1) judicial forfeiture

under section 9 if the value of the non-real property exceeds

$20,000 or is real estate, or (2) nonjudicial forfeiture under

section 6 if the value of the non-real property does not exceed

$20,000.   See 725 ILCS 150/6 (West 2006).

             1. Nonjudicial Forfeiture Under Section 6

           Where the non-real property does not exceed $20,000 and

the seized property's owner and interest holder fails to file a

claim and deposit a cost bond, the State must pursue nonjudicial


                                - 7 -
forfeiture under section 6.    If an owner or interest holder does

not file a claim or deposit a cost bond with the State's Attorney

in the nonjudicial forfeiture, the State's Attorney must declare

the property forfeited and notify the owners, all known interest

holders, and the Director of the Illinois State Police.      725 ILCS

150/6(D) (West 2006).   Nonjudicial forfeiture occurs where the

State's Attorney declares the property forfeited and notifies the

owner, known interest holders, and the Director of the Illinois

State Police, who then disposes of the property "in accordance

with law."   725 ILCS 150/6(D) (West 2006).

          After the State's Attorney declares the seized property

forfeited under section 6(D) and notifies the property owner, the

owner receives an additional opportunity to avoid forfeiture.

Pursuant to section 14, anyone with an interest in the forfeited

property "may, within 30 days of the effective date of the notice

of the declaration of forfeiture, file a claim and cost bond" as

described in section 6(C).    725 ILCS 150/14 (West 2006).   Once a

claimant complies with section 6(C) and complies with section 14

by filing a claim and cost bond within 30 days of notice, "the

procedures described in [s]ection 9 *** shall apply," and judi-

cial forfeiture proceedings commence again by the filing by the

State's Attorney of a verified complaint for forfeiture.     725

ILCS 150/6(C), 14 (West 2006).

              2. Judicial Forfeiture Under Section 9


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           Judicial forfeiture proceedings must be instituted by

the State's Attorney by the filing of a verified complaint when

either (1) the State's Attorney proceeds to judicial forfeiture

on non-real property over $20,000 or real property or (2) after

the property owner or an interest holder has filed a timely claim

and cost bond under section 6(C) on non-real property under

$20,000.   Judicial forfeiture requires the State's Attorney (1)

to file a verified in rem complaint for forfeiture and (2) "if

the claimant has filed a claim and cost bond, [to] deposit[] the

cost bond with the clerk of the court."   725 ILCS 150/9(A) (West

2006).   Once the State's Attorney files a verified complaint,

only owners or interest holders can then file an answer to the

complaint.   725 ILCS 150/9(C) (West 2006).    However, they must do

so within 45 days of receiving service of the complaint.     725

ILCS 150/9(E) (West 2006).

           After a claimant files an answer, the trial court must

conduct a hearing within 60 days.   725 ILCS 150/9(F) (West 2006).

During the hearing, the State "shall show the existence of proba-

ble cause for forfeiture of the property.     If the State shows

probable cause, the claimant has the burden of showing by a

preponderance of the evidence that the claimant's interest in the

property is not subject to forfeiture."   725 ILCS 150/9(G) (West

2006).   However:

                "If the State does not show existence of


                               - 9 -
           probable cause or a claimant has established

           by a preponderance of evidence that the

           claimant has an interest that is exempt under

           [s]ection 8 of this Act, the court shall

           order the interest in the property returned

           or conveyed to the claimant and shall order

           all other property forfeited to the State."

           725 ILCS 150/9(H) (West 2006).

Where the State establishes probable cause and the claimant fails

to "establish by a preponderance of evidence that the claimant

has an interest that is exempt under [s]ection 8 of this Act, the

court shall order all property forfeited to the State."    725 ILCS

150/9(H) (West 2006).

           Once an owner or interest holder files an answer to the

State's verified complaint, at the in rem forfeiture proceeding,

the trial court must determine whether the State had probable

cause for seizing the property by "receiv[ing] and consider[ing],

among other things, all relevant hearsay evidence and informa-

tion."   725 ILCS 150/9(B) (West 2006).

                         B. Jurisdiction

           Although neither party raises the issue, this court has

an obligation to ensure our appellate jurisdiction is proper.

See Department of Central Management Services v. American Federa-

tion of State, County & Municipal Employees, 182 Ill. 2d 234,


                              - 10 -
238, 695 N.E.2d 444, 446 (1998).   Here, we find neither we nor

the trial court had jurisdiction to hear this matter because the

State's Attorney failed to file a complaint for forfeiture in the

trial court.

          Once a claimant files a timely claim and cost bond for

return of seized property, the State's Attorney must file a

verified complaint for forfeiture to initiate judicial forfeiture

proceedings and vest the trial court with jurisdiction.    725 ILCS

150/9(A) (West 2006).   In both cases, the property owners filed

timely claims for return of seized currency, but the State never

filed a verified complaint, which would remove the forfeitures

from being nonjudicial, administrative proceedings and place them

within the trial court's jurisdiction.

           1. Case No. 08-MR-14 (Appeal No. 4-08-0464)

          In case No. 08-MR-14, the State sent Deviner notice of

pending forfeiture on January 11, 2008.    Deviner did not respond.

The State entered a declaration of nonjudicial forfeiture on

February 19, 2008, at least 6 days too early, as Deviner had 45

days within which to file a cost bond.    On March 13, 2008,

Deviner simultaneously filed (1) a timely claim for return of his

$1,240 pursuant to section 14 (725 ILCS 150/14 (West 2006) (in-

terest holders in property declared nonjudicially forfeited may

file a claim and cost bond as described in section 6(C))) and (2)

a motion for judicial review of the nonjudicial forfeiture.    We


                              - 11 -
note the record does not reflect whether Deviner filed a cost

bond or indigency affidavit as required by section 14 along with

his claim.   However, the State does not take issue with this

discrepancy in its brief and conceded at oral argument its fail-

ure to do so has resulted in the forfeiture of any argument

related to the failure to file a cost bond or indigency affida-

vit.

           In response to Deviner's claim and motion for judicial

review, the State filed a motion to dismiss the forfeiture ac-

tion.   The trial court determined the initial notice of forfei-

ture the State's Attorney sent to Deviner was untimely.   However,

the court had no jurisdiction over either Deviner's motion for

judicial review or the State's motion to dismiss because the

State had never filed a verified complaint for judicial forfei-

ture.   Section 9(A) required the State to file a verified com-

plaint for forfeiture within 45 days following March 13, 2008,

the date Deviner filed his claim with the State's Attorney.     See

725 ILCS 150/9(A) (West 2006).   Because the State never did so,

the court had no jurisdiction--it could neither adjudicate nor

dismiss a complaint that did not exist.

           Deviner filed a motion for judicial review of the

nonjudicial forfeiture proceeding on March 13, 2008, the same day

he filed his claim for return of the property.   Pursuant to

section 9, the State's Attorney had 45 days after the filing of


                              - 12 -
Deviner's claim to file its verified complaint to effect the

trial court's jurisdiction.    See 725 ILCS 150/9 (West 2006).

Thus, the errors here are threefold:     (1) the State's Attorney's

declaration of nonjudicial forfeiture prior to the time in which

Deviner had to file his claim with the State's Attorney was

improper; (2) the State's failure to file a verified complaint,

instead filing a motion to dismiss Deviner's motion for judicial

review; and (3) the trial court lacked jurisdiction over both

motions.   Because the trial court had no jurisdiction to preside

over this matter, neither does this court.

             2. Case No. 07-MR-530 (Appeal No. 4-08-0465)

           In case No. 07-MR-530, the State's Attorney sent Wood-

land notice of pending nonjudicial forfeiture on August 30, 2007.

On October 11, 2007, Woodland timely filed an indigency affidavit

in lieu of a cost bond and a claim for return of the $4,850 as

required by section 6(C)(2).    Along with the claim, Woodland also

filed a motion to dismiss the nonjudicial forfeiture action.     The

trial court again lacked jurisdiction over Woodland's motion to

dismiss because the State's Attorney had not yet filed a verified

complaint.    See 725 ILCS 150/9(A) (West 2006) ("within 45 days of

*** the filing of the claim and [indigency affidavit], *** the

State's Attorney shall institute judicial forfeiture proceedings

by filing a verified complaint for forfeiture").    Instead, the

trial court conducted a hearing on Woodland's motion to dismiss


                                - 13 -
the nonjudicial forfeiture proceeding, a matter over which the

court had no jurisdiction.    Woodland had to file his own verified

claim with the State's Attorney for the return of his property,

and the State's Attorney had then to file a verified complaint

thereby commencing the judicial forfeiture proceeding.   Because

the latter never occurred, the court lacked jurisdiction.

                            III. CONCLUSION

          For the reasons set forth above, we dismiss both causes

for lack of jurisdiction.

          Causes dismissed.

          APPLETON and POPE, JJ., concur.




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