                                          2019 IL App (3d) 180730

                                 Opinion filed July 3, 2019
     _____________________________________________________________________________

                                                   IN THE

                                   APPELLATE COURT OF ILLINOIS

                                             THIRD DISTRICT

                                                    2019

     THE PEOPLE OF THE STATE OF             )     Appeal from the Circuit Court
     ILLINOIS,                              )     of the 12th Judicial Circuit,
                                            )     Will County, Illinois,
           Plaintiff-Appellant,             )
                                            )     Appeal No. 3-18-0730
           v.                               )     Circuit Nos. 14-TR-11353 and
                                            )      14-TR-11354
                                            )
     FERNANDO HIGUERA JR.,                  )     Honorable
                                            )     Theodore J. Jarz,
           Defendant-Appellee.              )     Judge, Presiding.
     _____________________________________________________________________________

           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


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                    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:

     “[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.




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¶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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