                                                    NO. 5-05-0683
                   NOTICE

 Decision filed 03/02/07. The text of
                                                       IN THE
 this decision may be changed or

 corrected prior to the filing of a
                                            APPELLATE COURT OF ILLINOIS
 Peti tion   for    Rehearing   or   th e

 disposition of the same.
                             FIFTH DISTRICT
________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
                                       ) Circuit Court of
   Plaintiff-Appellee,                 ) Shelby County.
                                       )
v.                                     ) No. 04-CF-96
                                       )
SCOTT MICHAEL PRINCE,                  ) Honorable
                                       ) Michael P. Kiley,
   Defendant-Appellant.                ) Judge, presiding.
________________________________________________________________________

             JUSTICE SPOM ER delivered the opinion of the court:

             The defendant, Scott Michael Prince, asks this court to grant him credit for time spent

in custody prior to his sentencing, against the $200 in fines that accompanied his sentences

following pleas of guilty to two counts of predatory criminal sexual assault. The defendant

does not raise any other issues regarding his convictions and sentences. For the following

reasons, we grant the defendant the requested credit and otherwise affirm his convictions and

sentences.

             On November 10, 2004, the defendant entered open pleas of guilty to two counts of

predatory criminal sexual assault. On March 18, 2005, the defendant was sentenced to 12

years' and 8 years' imprisonment, to be served consecutively. He was also ordered to pay a

$100 sexual assault fine and a $100 domestic violence fine. Although the defendant was

granted sentencing credit for 264 days spent in presentencing custody, he was not granted

credit against his fines.

             The defendant now asks this court to grant him credit against his fines for the time

spent in presentencing custody. In support of his position, the defendant points to section


                                                         1
110-14 of the Code of Criminal Procedure of 1963, which at the time of his offense stated

as follows:

              "Any person incarcerated on a bailable offense who does not supply bail and

       against whom a fine is levied on conviction of such offense shall be allowed a credit

       of $5 for each day so incarcerated upon application of the defendant. However, in no

       case shall the amount so allowed or credited exceed the amount of the fine." 725

       ILCS 5/110-14 (West 2002).

The defendant, citing People v. Woodard, 175 Ill. 2d 435, 457 (1997), notes as well that his

request for the $5-per-day credit is not subject to waiver and that he may request his credit

for the first time on appeal.

       The State does not contest the defendant's assertion that the credit is not subject to

waiver, but the State notes instead that section 110-14 was amended, effective January 1,

2005, to include language stating that the credit described above "does not apply to a person

incarcerated for sexual assault" as that offense is defined in the Unified Code of Corrections

(730 ILCS 5/5-9-1.7(a)(1) (West 2004)). 725 ILCS 5/110-14(b) (West 2004). The State

posits that because the defendant was sentenced, and his fines imposed, subsequent to

January 1, 2005, he is not entitled to any monetary credit against his fines.

       The defendant replies to the State's argument by pointing out that although he was

sentenced, and his fines were imposed, after January 1, 2005, his offense took place in 2004,

prior to the amendment. Accordingly, the defendant contends, the denial of credit against

his fines pursuant to the amendment would violate the federal and state prohibitions against

ex post facto laws.

       We agree with the defendant. The United States Constitution prohibits both the

Congress (U.S. Const., art. I, §9) and the states (U.S. Const., art. I, §10) from enacting ex

post facto laws. The Illinois Constitution also forbids the enactment of ex post facto laws.


                                              2
Ill. Const. 1970, art. I, §16. The Illinois Supreme Court looks to the United States Supreme

Court's interpretation of the federal ex post facto prohibition to interpret the Illinois

prohibition. Fletcher v. Williams, 179 Ill. 2d 225, 229 (1997). The jurisprudence of the

United States Supreme Court on the matter of ex post facto laws, although steadily evolving,

is well-rooted in the seminal ex post facto case of Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L.

Ed. 648 (1798). In that case, Justice Chase noted that the proscription against ex post facto

laws found in the United States Constitution "necessarily requires some explanation; for,

naked and without explanation, it is unintelligible, and means nothing." Calder, 3 U.S. (3

Dall.) at 390, 1 L. Ed. at 650. Justice Chase examined the origin of the expression ex post

facto in the English common law and then cataloged ex post facto laws as criminal laws of

the following types:

       "1st. Every law that makes an action done before the passing of the law, and which

       was innocent when done, criminal; and punishes such action. 2d. Every law that

       aggravates a crime, or makes it greater than it was, when committed. 3d. Every law

       that changes the punishment, and inflicts a greater punishment, than the law annexed

       to the crime, when committed. 4th. Every law that alters the legal rules of evidence,

       and receives less, or different, testimony, than the law required at the time of the

       commission of the offence, in order to convict the offender." (Emphasis in original.)

       Calder, 3 U.S. (3 Dall.) at 390, 1 L. Ed. at 650.

       Subsequent United States Supreme Court and Illinois Supreme Court decisions have

built upon this initial cataloging and in so doing have clarified the parameters of the

prohibition against ex post facto laws. According to the Illinois Supreme Court, a criminal

law will run afoul of the prohibition against ex post facto laws if it is retroactive and

disadvantageous to the defendant. People v. Malchow, 193 Ill. 2d 413, 418 (2000). A law

disadvantages a defendant if it criminalizes an act that was innocent when done, increases


                                              3
the punishment for a previously committed offense, or alters the rules of evidence by making

a conviction more easy to obtain. Malchow, 193 Ill. 2d at 418. The prohibition against ex

post facto laws applies only to laws that are punitive in nature, and it does not apply to costs,

which are compensatory, not punitive. People v. Bishop, 354 Ill. App. 3d 549, 561 (2004).

A fine, on the other hand, is a pecuniary punishment imposed as a part of a criminal sentence

and is subject to the prohibition against ex post facto laws. Bishop, 354 Ill. App. 3d at 562.

       In the present case, a denial of the credit against the defendant's fines would increase

the punishment for a previously committed offense. At the time of the defendant's offense,

an individual convicted of that offense who accrued credit for time spent in custody prior to

sentencing would be entitled to offset the individual's fine to the tune of $5 per day of

incarceration. That credit was a part of the equation that made up the overall punishment

possible for the offense, and a denial of that credit now would alter that equation to the

defendant's detriment because it would increase the punishment possible for the defendant's

previously committed offense by denying the defendant the ability to use credit for time

spent in custody prior to sentencing to offset the defendant's fine. In this case, it would

increase the defendant's punishment by $200 more than the identical offense, with the

identical fine and time spent in presentencing custody, would have been punishable at the

time it was committed. That result is not permissible under ex post facto jurisprudence. See,

e.g., People v. Delgado, 368 Ill. App. 3d 985, 994 (2006) (the defendant was entitled to elect

to be sentenced under the preamendment version of section 110-14); In re Hunt, 28 Tex.

App. 361, 13 S.W. 145 (1890) (a statute reducing the rate per day allowed a county convict

as credit on a fine is an ex post facto law if applied retroactively).

       For the foregoing reasons, we grant the defendant the credit he has requested, and we

otherwise affirm his convictions and sentences. Because the amount credited may not

exceed the amount of the fines (725 ILCS 5/110-14 (West 2002)), our ruling results only in


                                               4
the defendant's fines being paid in full.



       Affirmed as modified.



       GOLDENHERSH and WEXSTTEN1 , JJ., concur.




       1
           Originally, Justice Hopkins was assigned to the panel. Justice Wexstten was later

substituted on the panel and has read the briefs.

                                               5
                                            NO. 5-05-0683

                                                IN THE

                                 APPELLATE COURT OF ILLINOIS

                                  FIFTH DISTRICT
___________________________________________________________________________________

      THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
                                            ) Circuit Court of
         Plaintiff-Appellee,                ) Shelby County.
                                            )
      v.                                    ) No. 04-CF-96
                                            )
      SCOTT MICHAEL PRINCE,                 ) Honorable
                                            ) Michael P. Kiley,
         Defendant-Appellant.               ) Judge, presiding.
___________________________________________________________________________________

Opinion Filed:        March 2, 2007
___________________________________________________________________________________

Justices:           Honorable Stephen L. Spomer, J.

                 Honorable Richard P. Goldenhersh, J., and
                 Honorable James M. Wexstten, J.,
                 Concur
___________________________________________________________________________________

Attorneys        Daniel M. Kirwan, Deputy Defender, Paige Clark Strawn, Assistant Defender, Office
for              of the State Appellate Defender, Fifth Judicial District, 117 North Tenth Street, Suite
Appellant        #300, Mt. Vernon, IL 62864
___________________________________________________________________________________

Attorneys        Hon. Alan Lolie, State's Attorney, Shelby County Courthouse, Shelbyville, IL 62565;
for              Norbert J. Goetten, Director, Stephen E. Norris, Deputy Director, Kendra S. Peterson,
Appellee         Staff Attorney, Office of the State's Attorneys Appellate Prosecutor, 730 E. Illinois
                 Highway 15, Suite #2, P.O. Box 2249, Mt. Vernon, IL 62864
___________________________________________________________________________________
