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                               Appellate Court                           Date: 2019.09.18
                                                                         09:51:45 -05'00'



                  People v. Higuera, 2019 IL App (3d) 180730



Appellate Court    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant,
Caption            v. FERNANDO HIGUERA JR., Defendant-Appellee.


District & No.     Third District
                   Docket No. 3-18-0730



Filed              July 3, 2019



Decision Under     Appeal from the Circuit Court of Will County, Nos. 14-TR-11353, 14-
Review             TR-11354; the Hon. Theodore J. Jarz, Judge, presiding.



Judgment           Vacated.


Counsel on         James W. Glasgow, State’s Attorney, of Joliet (Patrick Delfino and
Appeal             Thomas D. Arado, of State’s Attorneys Appellate Prosecutor’s Office,
                   of counsel), for the People.

                   No brief filed for appellee.



Panel              JUSTICE CARTER delivered the judgment of the court, with opinion.
                   Justices Holdridge and Wright concurred in the judgment and opinion.
                                              OPINION

¶1       The State appeals following the trial court’s vacatur of a judgment entered on the forfeiture
     of defendant’s bond. It argues that the court was without jurisdiction to vacate the more than
     three-year-old judgment. We agree and vacate the trial court’s order as void.

¶2                                        I. BACKGROUND
¶3       Defendant, Fernando Higuera Jr., pled guilty to driving while license suspended (625 ILCS
     5/6-303 (West 2014)) on August 12, 2014. Defendant subsequently failed to appear at his
     sentencing hearing on October 28, 2014. The trial court ordered the forfeiture of defendant’s
     bond as well as a bench warrant. The circuit clerk sent a notice to defendant, informing him
     that his bond of $1500 had been ordered forfeited and that the forfeiture would be vacated if
     he appeared within 30 days and showed good cause why judgment should not be entered on
     the forfeiture. At a hearing on December 9, 2014, the trial court ordered that judgment be
     entered on the forfeiture of defendant’s bond.
¶4       Defendant was arrested on July 24, 2018, and appeared in court on September 20, 2018.
     At that hearing, defense counsel asked the court to vacate the 2014 bond forfeiture. The State
     objected, insisting that the court was without jurisdiction to do so. The court disagreed,
     asserting that until a final sentencing order was issued in defendant’s 2014 criminal case, it
     retained jurisdiction. In the ensuing sentencing order, the court wrote, “vacate all bond
     forfeitures.” The State filed a motion to reconsider, again arguing that the court lacked
     jurisdiction. The court denied the motion, and the State appeals.

¶5                                           II. ANALYSIS
¶6        Section 110-7(g) of the Code of Criminal Procedure of 1963 provides the authority for the
     forfeiture of a defendant’s bond:
                  “(g) If 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 ***. *** The balance of the judgment may be
             enforced and collected in the same manner as a judgment entered in a civil action.” 725
             ILCS 5/110-7(g) (West 2014).
     It is well-settled that a bond forfeiture judgment under the above section is a civil judgment.
     People v. Taylor, 2013 IL App (2d) 110577, ¶ 26. Accordingly, it is the Code of Civil
     Procedure (Code) (735 ILCS 5/1-101 et seq. (West 2016)) that “furnish[es] the procedure for
     setting aside a final judgment of bond forfeiture which must be accomplished within 30 days
     after the entry of the judgment.” People v. Canaccini, 52 Ill. App. 3d 811, 814 (1977).
¶7        Because bond forfeiture and entry of judgment on that forfeiture are distinct civil
     proceedings, such a judgment constitutes a final order independent of any sentencing order in
     the contemporaneous criminal proceedings. See People v. Montaigne, 86 Ill. App. 3d 220, 222
     (1980). In a case nearly identical to the one presently before us, the Montaigne court concluded:

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       “[T]he bond forfeiture judgment of January 4, 1979, was a final order and *** the trial court
       lost authority to vacate that judgment after 30 days from its entry. Accordingly, the order
       vacating the judgment is void and must be reversed.” Id.
¶8         The sole authority for attacking a civil judgment more than 30 days from its entry is found
       in section 2-1401 of the Code. 735 ILCS 5/2-1401 (West 2016). Defense counsel’s oral request
       for the vacatur of the 2014 bond forfeiture cannot be construed as a section 2-1401 petition.
       Indeed, the judgment on the bond forfeiture had been entered more than three years earlier,
       and was thus outside of the two-year window contemplated by section 2-1401. See id. § 2-
       1401(c). To attack a judgment outside of that window, a petitioner must demonstrate disability
       or duress, fraudulent concealment, or voidness of the original judgment. E.g., People v. Walker,
       2018 IL App (3d) 150527, ¶ 32. Defendant made no such showings here.
¶9         Accordingly, we find that the trial court was without jurisdiction to vacate its previous
       forfeiture order. See People v. Wilson, 198 Ill. App. 3d 555, 559 (1990). We vacate that void
       order.

¶ 10                                     III. CONCLUSION
¶ 11      The judgment of the circuit court of Will County is vacated.

¶ 12      Vacated.




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