People v. Kirkpatrick

608 N.E.2d 256, 240 Ill. App. 3d 401
CourtAppellate Court of Illinois
DecidedDecember 21, 1992
DocketNo. 1-91-4010
StatusPublished
Cited by10 cases

This text of 608 N.E.2d 256 (People v. Kirkpatrick) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Kirkpatrick, 608 N.E.2d 256, 240 Ill. App. 3d 401 (Ill. Ct. App. 1992).

Opinion

JUSTICE CAMPBELL

delivered the opinion of the court:

Defendant Peggy Kirkpatrick appeals an order of the circuit court of Cook County denying defendant’s request that her bail bond deposit be refunded to her attorneys. The trial court ruled plaintiff Hazel Dreifholdt, the aunt of defendant’s ex-husband, plaintiff Rodger Kirkpatrick, had a superior interest in the funds, and ordered the funds be paid to Hazel. For the following reasons, we affirm.

The record on appeal indicates the following facts. Defendant was charged by indictment with one count of attempted first degree murder, one count of conspiracy to commit murder, two counts of armed violence and three counts of aggravated battery. Bond was set at $250,000. On July 24, 1990, pursuant to section 110 — 7 of the Code of Criminal Procedure (Ill. Rev. Stat. 1989, ch. 38, par. 110 — 7), defendant posted 10% of the bond amount — $25,000—and was issued a receipt by the clerk of court. On July 8, 1991, defendant pleaded guilty to three counts of aggravated battery; the State nol-prossed the remaining counts. At hearings on the plea, the parties stipulated to facts indicating that a codefendant shot Rodger Kirkpatrick on behalf of defendant and that defendant aided the shooting. Defendant was sentenced to two years’ imprisonment, followed by one year of mandatory supervised release. In addition, costs and fines totalling $4,000 were to be deducted from the bond.

At the sentencing hearing, one of defendant’s attorneys moved for leave to file a petition for a cash bond refund (CBR) to the attorney of record. The trial court noted that no one appeared as a surety on the bond deposit slip. Over the State’s objection, the trial court allowed the motion and stated that any objections should be filed by July 22, 1991.

The case was continued to August 13, 1991, when defendant moved in limine to bar testimony from anyone seeking to assert an interest in the bond refund for lack of standing. The motion was denied, and the trial court heard evidence on the CBR petition. Defendant’s motion to reconsider the ruling on her motion in limine was denied on August 29, 1991. The trial court allowed time for further motions to be heard the following month.

On September 26, 1991, defendant moved to transfer the hearing on the CBR petition to a pending chancery action concerning the same subject matter. The court set the motion for argument on November 12, 1991. Yet on November 12, 1991, the trial judge recused himself and transferred the case to the presiding judge for reassignment. Following a hearing before the presiding judge on November 13, 1991, the case was transferred back to the trial judge to state reasons for the recusal and to reconsider the ruling. Later that day, the trial judge stated that the reason for the recusal was that he knew a newly added defense attorney from a bar association function and wanted the parties to know of this relationship. Over defendant’s objection, the trial judge revested himself with jurisdiction over the matter. Defendant moved to vacate the order revoking the recusal.

The motion to vacate was denied at a hearing held on December 18, 1991. At this hearing, the court stated that it had heard the evidence relating to the GBR petition. The court stated that defendant’s husband Rodger raised $20,000 of the $25,000 deposit from his aunt, Hazel Dreifholdt, who lives in another State. Rodger then deposited the money in his account and had a certified check for $25,000 made out to the clerk of court. The court found there was no indication of a surety on the bond deposit slip. The court nevertheless found that the evidence, including a letter defendant wrote Hazel thanking her for the money, established that the money came from Hazel. The court also took note of a divorce settlement between defendant and Rodger which provided that the bond money belonged to Hazel. The court stated that defendant subsequently hired the attorney to whom the GBR petition relates. The court concluded that Hazel had a superior interest in the funds and that the money would go to her, rather than to the defense attorney. Defendant timely filed a notice of appeal. On April 10, 1992, this court, over defendant’s objection, added Rodger and Hazel as parties, pursuant to Illinois Supreme Court Rule 366(a)(2) (134 Ill. 2d R. 366(a)(2).).

I

Initially, defendant contends that the bail statute creates a conclusive presumption that the funds belong to her. (See People v. Markovich (1990), 195 Ill. App. 3d 999, 552 N.E.2d 1232.) Although Markovich suggests that such a presumption exists for the purpose of paying costs and fines, it does not exist for the purpose of paying legal fees. (See, e.g., People v. Dorsey (1982), 109 Ill. App. 3d 218, 225-26, 440 N.E.2d 394, 399-400.) Indeed, the Dorsey court concluded that the trial court could prevent a defendant from using a cash bond deposit where the funds were the subject of dissolution proceedings. The record here indicates that the trial court considered a divorce settlement agreement between Rodger and defendant indicating that the bond funds belonged to Hazel. Thus, the presumption, if any, that the funds belong to defendant may be rebutted.

II

In this context, we turn to defendant’s argument that the trial court deprived her of property without due process of law by: (1) failing to add Rodger or Hazel or both as necessary and indispensable parties; and (2) denying her motion in limine to bar testimony from anyone asserting an interest in the bond funds because such persons had no standing and had filed no pleadings in the case. As to the first claimed error, this court has rejected similar claims where the record clearly indicates that defendant received due process of law. (See O’Connell v. Pharmaco, Inc. (1986), 143 Ill. App. 3d 1061, 1069-70, 493 N.E.2d 1175, 1181.) It is apparent from the record that defendant appeared and defended her claim on the CBR, and thereby received due process of law. The motion in limine itself sought to bar references to “Any involvement by anyone’s ‘aunt,’ ” which indicates that defendant had notice of the objections which were in fact raised in this case. As to the second claimed error, defendant has provided no authority that a witness must have standing or must have filed pleadings as a prerequisite to such testimony being admissible. Thus, defendant’s arguments are unpersuasive.

III

Defendant contends that it was improper for the State to object to the CBR petition. Defendant relies on cases holding that the State’s Attorney may not be interested in a civil case which may also be the basis of a criminal case, in order to prevent personal interest from influencing a prosecution. People v. Kidd (1948), 401 Ill. 230, 237, 81 N.E.2d 892, 895; People ex rel. Hutchison v. Hickman (1920), 294 Ill. 471, 476; People ex rel. Carey v. Lincoln Towing Service (1976), 40 Ill. App. 3d 126, 130-32, 351 N.E.2d 342, 347-48; In re Guardianship of Angell (1960), 26 Ill. App. 2d 239, 243,

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Bluebook (online)
608 N.E.2d 256, 240 Ill. App. 3d 401, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-kirkpatrick-illappct-1992.