filed:  January 24, 2002

In March 1999, defendant Raymond R. Fulkerson wasconvicted of committing aggravated driving under the influence ofalcohol in August 1998 (625 ILCS 5/11-501(a)(1), (a)(2),(d)(1)(C) (West Supp. 1997)). The trial court sentenced him to aterm of imprisonment. It also ordered him to pay restitution. Fulkerson eventually filed a motion for postconviction relief,which argued that (1) his sentence was excessive under thestatute and (2) restitution was not authorized. In May 2000, thetrial court reduced Fulkerson's term of imprisonment but continued to order restitution. Fulkerson appealed. In an unpublishedorder, we held that the relevant statute did not authorizerestitution. We vacated the order of restitution and remandedthe case for issuance of an amended judgment "omitting therestitution reference." People v. Fulkerson, Nos. 4-99-0635, 4-00-0484 cons., slip order at 9 (December 29, 2000) (unpublishedorder under Supreme Court Rule 23).

Fulkerson thereupon filed a motion for the return ofhis bail bond deposit which, after the payment of fines andcosts, amounted to approximately $4,004. In response, theState's Attorney claimed that the circuit clerk of LivingstonCounty had already paid the balance of the deposit to the victims. The State argued that Fulkerson's remedy was against thosevictims, not the clerk. It also argued that Fulkerson hadforfeited the right to seek a return of his deposit by failing toseek a stay of its disbursement. The trial court apparentlyaccepted these arguments and denied Fulkerson's motion. Fulkerson appeals.

The issue before us is one of first impression. Bothparties cite case law discussing various scenarios regarding thepayment and subsequent refund of fines. However, while fines andrestitution may be treated similarly in some circumstances, theyoriginate from entirely different statutory schemes. Fines areoften offense-specific; restitution is governed by one centralstatutory provision. In any event, even those cases involvingfines leave the question open. Drury v. County of McLean, 89Ill. 2d 417, 433 N.E.2d 666 (1982), is perhaps closest to theinstant case. There, the plaintiffs paid fines to the circuitclerk of McLean County, who in turn mistakenly distributed themoney to the town of Normal and the State instead of placing themin the county coffers where they belonged. Drury, 89 Ill. 2d at419-20, 433 N.E.2d at 667. The plaintiffs nonetheless suedMcLean County. The supreme court first determined that thecircuit clerk was an agent of the courts, not of the county. Ittherefore held that the county could not be sued for money itnever received, owing to the clerk's mistake. It explicitly leftopen the question of whether the plaintiffs could recover fromthe clerk's office itself. Drury, 89 Ill. 2d at 427, 433 N.E.2dat 670.

Section 110-7 of the Code of Criminal Procedure of 1963provides that when a defendant posts a bail bond and deposit, hemust acknowledge that his bail may be used "to pay costs, attorney's fees, fines, or other purposes authorized by the court." 725 ILCS 5/110-7(a) (West 1998). It also provides that thecircuit clerk has a duty to return the amount of the bond whenthe conditions of the bail bond have been performed and theaccused has been discharged from his or her obligations in thecause. 725 ILCS 5/110-7 (West 1998).

Section 110-7 does not specifically contemplate restitution. However, section 5-5-6(e) of the Unified Code of Corrections provides that "The court may require the defendant to applythe balance of the cash bond, after payment of court costs, andany fine that may be imposed to the payment of restitution." 730ILCS 5/5-5-6(e) (West 1998). Use of the permissive "may" indicates that the payment of restitution from a defendant's bailbond deposit lies within the discretion of the trial court.

Nothing in the record indicates that the trial court inthis case ever authorized the payment of restitution fromFulkerson's bail bond deposit. Rather, it merely ordered thatFulkerson pay restitution within five years of his release fromimprisonment. If the circuit clerk did in fact give the balanceof Fulkerson's bond to the victims in this case, his actions werenot authorized. Contrary to the State's assertion, it was not"logical and proper" for the office of the circuit clerk to payover Fulkerson's bond in the absence of an order directing it todo so. Similarly, the State's argument regarding Fulkerson'sduty to seek a stay of disbursement is not well-taken. In aproper case, that argument might perhaps have some merit. But itis unclear how or why Fulkerson could be required to seek a stayof a payment which was never authorized in the first instance andof which he had no judicial notice.

In sum, this case would be much different (and muchmore complex) if the circuit clerk had distributed the balance ofFulkerson's bond in accordance with a judicial directive whichwas later vacated. But that did not happen here. On remand, thetrial court is therefore directed to enter an order requiring thecircuit clerk to return the balance of Fulkerson's bond deposit.

Reversed and remanded with directions.

MYERSCOUGH and KNECHT, JJ., concur.