                                                                            THIRD DIVISION
                                                                            May 17, 2006




No. 1-04-3362




THE PEOPLE OF THE STATE OF ILLINOIS,                         )      Appeal from
                                                             )      the Circuit Court
                Plaintiff-Appellee,                          )      of Cook County.
                                                             )
       v.                                                    )      No. 01 CR 10799
                                                             )
ALFREDO GUTIERREZ,                                           )      Honorable
                                                             )      Kenneth J. Wadas,
                Defendant-Appellant.                         )      Judge Presiding


       JUSTICE THEIS delivered the opinion of the court:

       Following a bench trial, defendant Alfredo Gutierrez was convicted of aggravated battery

with a firearm and aggravated unlawful use of a weapon and was sentenced to concurrent prison

terms of six years and one year respectively. On appeal, defendant contends that the trial court=s

assessment of a $4 additional penalty pursuant to section 5-9-1(c-9) of the Unified Code of

Corrections (the Code) (730 ILCS 5/5-9-1(c-9) (West 2004)), violated the ex post facto clause of

the United States Constitution. Alternatively, defendant contends that the $4 is to be offset by

the $5-per-day credit for the 27 days he spent in custody prior to sentencing. For the following

reasons, we vacate the $4 penalty and otherwise affirm his convictions and sentences.

       Defendant=s convictions arose from a drive-by shooting on April 11, 2001, in which the

victim, Martin Carranza, suffered a gunshot wound to his leg. Defendant has not raised any

issues on appeal with respect to his convictions. Rather, defendant challenges the court=s
1-04-3362

imposition of the $4 additional penalty for the Traffic and Criminal Conviction Surcharge Fund

(730 ILCS 5/5-9-1 (c-9) (West 2004) as violating ex post facto laws because it was an additional

punishment not in effect at the time of defendant=s offense. The State maintains that the penalty

is not punitive in nature and therefore not in violation of the prohibition against ex post facto

laws.

        Imposition of a punishment greater than the one in effect when the offense was

committed violates the prohibition of ex post facto laws under the United States Constitution.

U.S. Const., art. I, '10. The ban against ex post facto laws applies only to laws that are punitive

in nature, and does not apply to costs, which are compensatory in nature. People v. Bishop, 354

Ill. App. 3d 549, 561, 821 N.E.2d 677, 688-89 (2004).

        The $4 additional penalty was added to the statute effective June 20, 2003. Pub. Act 93-

32, eff. June 20, 2003 (adding 730 ILCS 5/5-9-1(c-9)). Thus, this section was not in effect at the

time defendant committed the offenses for which he has been convicted and sentenced.

Furthermore, in People v. Jamison, No. 1-04-2219, slip op. at 4-7 (Ill. App. April 12, 2006), this

court recently rejected the State=s argument that the $4 additional penalty is not punitive in

nature. Rather, the court held that based upon the plain language of the statute, the $4 imposed

is a pecuniary punishment in the nature of a fine. Accordingly, since the assessment of the $4

imposes a punishment greater than that in effect when defendant=s offense was committed, we

agree that it violates ex post facto laws.

        For the foregoing reasons, we vacate the $4 penalty imposed for the Traffic and Criminal

Conviction Surcharge Fund and direct the circuit court of Cook County to modify the sentencing



                                                -2-
1-04-3362

order accordingly. We otherwise affirm defendant=s convictions and sentences.

       Affirmed in part; vacated in part.

       HOFFMAN, P.J., and ERICKSON, J., concur.




                                             -3-
            REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
        _________________________________________________________________

          THE PEOPLE OF THE STATE OF ILLINOIS,

                 Plaintiff-Appellee,

                 v.

          ALFREDO GUTIERREZ,

                 Defendant-Appellant.

         ________________________________________________________________

                                         No. 1-04-3362

                                  Appellate Court of Illinois
                                 First District, Third Division

                                Filed: May 17, 2006
        _________________________________________________________________

                      JUSTICE THEIS delivered the opinion of the court.

                       Hoffman, P.J., and Erickson, J., concur.
        _________________________________________________________________

                    Appeal from the Circuit Court of Cook County
                    Honorable Kenneth J. Wadas, Judge Presiding
        _________________________________________________________________

For APPELLANT,            Michael J. Pelletier, State Appellate Defender
                          Michael H. Orenstein, Assistant Appellate Defender
                          Office of the State Appellate Defender
                          203 N. LaSalle St., 24th Floor
                          Chicago, IL 60601

For APPELLEE,             Richard A. Devine, State=s Attorney
                          James E. Fitzgerald, Assistant State=s Attorney
                          Paula Borg, Assistant State=s Attorney
                          Christopher James Petelle, Assistant State=s Attorney
                          300 Richard J. Daley Center
                          Chicago, IL 60602
