                               No. 2-09-0275    Filed: 9-16-10
______________________________________________________________________________

                                              IN THE

                              APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE                 ) Appeal from the Circuit Court
OF ILLINOIS,                            ) of McHenry County.
                                        )
       Plaintiff-Appellant,             )
                                        )
v.                                      ) No. 09--MR--10
                                        )
1996 HONDA ACCORD, VIN                  )
1HGCE6671TA029089, and THREE            )
THOUSAND, SEVEN HUNDRED FORTY- )
NINE DOLLARS ($3,749.00) UNITED         )
STATES CURRENCY,                        )
                                        )
       Defendants                       )
                                        ) Honorable
(Ryan Foley and Gladys Foley, Claimants ) Joseph P. Condon,
-Appellees).                            ) Judge, Presiding.
_______________________________________________________________________________

       JUSTICE McLAREN delivered the opinion of the court:

       The State filed a complaint for forfeiture of a 1996 Honda Accord and $3,749 in cash. Ryan

Foley and Gladys Foley contested the forfeiture. Citing Smith v. City of Chicago, 524 F.3d 834 (7th

Cir. 2008), the trial court held that the Drug Asset Forfeiture Procedure Act (725 ILCS 150/1 et seq.

(West 2008)) and the forfeiture provisions of the Cannabis Control Act (720 ILCS 550/12 (West

2008)) violate due process because they do not provide for a prompt probable cause hearing.

Accordingly, the court dismissed the complaint. The State appeals, contending that Smith is
No. 2--09--0275


inconsistent with Supreme Court precedent and that, under that precedent, the proceedings below

comported with due process. We vacate and remand.

       The forfeiture complaint alleges that the McHenry County sheriff's police seized the vehicle

and the cash on October 20, 2008. A grand jury later indicted Ryan Foley for violating the Cannabis

Control Act (720 ILCS 550/1 et seq. (West 2008)). The State then filed its forfeiture complaint.

Ryan Foley and Gladys Foley filed a claim of interest in the property.

       At a hearing, the Foleys' counsel argued that Gladys Foley and Schults Auto Sales were the

vehicle's registered owners and that Gladys Foley did not know that the vehicle was being used for

illegal activity. The Foleys also argued that Smith mandated that the complaint be dismissed because

no prompt probable cause hearing had been held. The trial court agreed and dismissed the

complaint. The State timely appeals.

       In dismissing the forfeiture complaint, the trial court relied on Smith. There, the Seventh

Circuit held that Illinois's Drug Asset Forfeiture Procedure Act (725 ILCS 150/1 et seq. (West 2004))

was unconstitutional for failing to provide for a prompt probable cause hearing. The State contends

that Smith was inconsistent with controlling Supreme Court precedent and, further, that applying

those precedents shows that the proceedings here were consistent with due process.

       This court rejected Smith in People v. 1998 Ford Explorer, 399 Ill. App. 3d 99 (2010). We

noted that Smith had been vacated by the United States Supreme Court. Alvarez v. Smith, ___ U.S.

___, ___, 175 L. Ed. 2d 447, 450, 130 S. Ct. 576, 578 (2009). We held that Supreme Court

precedent provides that a forfeiture proceeding complying with constitutional speedy-trial guidelines

satisfies due process. 1998 Ford Explorer, 399 Ill. App. 3d at 102-03, citing United States v. Von

Neumann, 474 U.S. 242, 251, 88 L. Ed. 2d 587, 596, 106 S. Ct. 610, 615 (1986), citing Barker v.



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No. 2--09--0275


Wingo, 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972); see also United States v. Eight

Thousand Eight Hundred & Fifty Dollars ($8,850) in United States Currency, 461 U.S. 555, 562

n.12, 76 L. Ed. 2d 143, 150-51 n.12, 103 S. Ct. 2005, 2011 n.12 (1983).

       In their brief, claimants1 acknowledge that the Supreme Court vacated the Seventh Circuit

opinion in Smith. They nevertheless argue that under the test formulated in Mathews v. Eldridge,

424 U.S. 319, 334-35, 47 L. Ed. 2d 18, 33, 96 S. Ct. 893, 903 (1976), to evaluate whether a

proceeding complies with due process, the proceedings below took too long and thus violated due

process.

       We note that claimants' pleading is not in the record on appeal. Thus, it is not entirely clear

what facts claimants alleged and on which the trial court relied in reaching its decision. While the

appellant has the burden to present a sufficiently complete record on appeal and any doubts resulting

from the incomplete record will be resolved against the appellant (Foutch v. O'Bryant, 99 Ill. 2d 389,

391-92 (1984)), we do not apply the presumption here because the hearing transcript makes clear that

the trial court dismissed the complaint in reliance on Smith. As Smith does not provide the proper

test, we must vacate the dismissal order. We remand the cause for reconsideration of claimants'

arguments in light of the correct standard. Claimants are not foreclosed from arguing that the length

of the proceeding violated due process.

       The judgment of the circuit court of McHenry County is vacated and the cause is remanded.

       Vacated and remanded.

       ZENOFF, P.J., and BURKE, J., concur.



       1
           The caption of the appellees' brief lists Ryan Foley and Gladys Foley as claimants. The body
of the brief, however, contends that only Gladys Foley is a registered owner of the vehicle.

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