                                                                            THIRD DIVISION
                                                                            April 12, 2006


No. 1-04-2219



THE PEOPLE OF THE STATE OF ILLINOIS,                         )         Appeal from
                                                             )       the Circuit Court
                Plaintiff-Appellee,                          )       of Cook County.
                                                             )
       v.                                                    )       No. 03 CR 27692
                                                             )
LEONARD JAMISON,                                             )          Honorable
                                                             )        Patrick J. Morse,
                Defendant-Appellant.                         )        Judge Presiding.


                          OPINION UPON DENIAL OF REHEARING

       JUSTICE THEIS delivered the opinion of the court:

       Following a bench trial, defendant Leonard Jamison was convicted of burglary and

sentenced to six years= imprisonment. On appeal, defendant argues: (1) the trial court erred in

imposing a $20 fine against him that was not permitted by law; (2) the court erred in failing to

award him $5-per-day presentence credit toward the $4 additional penalty assessed against him;

and (3) the compulsory extraction and perpetual storing of his DNA under section 5-4-3 of the

Unified Code of Corrections (the Code) (730 ILCS 5/5-4-3 (West 2002)) violated his fourth

amendment right to be free from unreasonable searches. For the following reasons, we affirm as

modified.

       Because defendant does not challenge the evidence to sustain his conviction, we briefly

set forth a summary of the facts underlying his conviction. The evidence at trial established that

defendant was observed closing the door of Mark Wheeler=s Ford Explorer on November 30,

2003. Wheeler then discovered three rented DVDs were missing from the front seat of his car.
1-04-2219

When defendant was stopped by police shortly thereafter for a traffic violation, Wheeler

informed the officer of the theft. The plastic bag containing these DVDs and the receipt bearing

Wheeler=s name were found in defendant=s car. Defendant did not have permission to enter

Wheeler=s vehicle or take the DVDs.

       After the court found defendant guilty of burglary, it denied defendant=s motion for a new

trial. At a subsequent sentencing hearing, the court then sentenced defendant as a Class X

offender to six years= imprisonment and assessed costs and fees against defendant totaling

$549.00. Following sentencing, defendant did not file a motion to reconsider or reduce his

sentence and thus, never raised an objection regarding fines or credit due to him. In fact, defense

counsel informed the trial court of the appropriate monetary charges to be assessed against

defendant stating, AJudge, I=ll prepare a DNA order, and the costs are going to be $549,00.@

Defendant then filed this timely appeal.

ANALYSIS

       Defendant contends that the compulsory extraction and subsequent storing of his DNA

pursuant to section 5-4-3 of the Code (730 ILCS 5/5-4-3 (West 2004)) constitutes an

unreasonable search, violating his fourth amendment rights. Our supreme court recently rejected

this exact claim and upheld the constitutionality of the statute in People v. Garvin, No. 99031

(Ill. March 23, 2006). Therefore, defendant=s argument fails.

       Defendant next challenges the court=s imposition of the $20 fine for the Violent Crimes

Assistance Fund (725 ILCS 240/10(c)(2) (West 2004)). He argues that it was erroneously

assessed because the trial court also imposed a $4 fine for the Traffic and Criminal Conviction



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1-04-2219

Surcharge Fund (730 ILCS 5/5-9-1(c-9) (West 2004)), 1 and the $20 fine may only be imposed if

Ano other fines@ are imposed (725 ILCS 240/10(c)(2) (West 2004)).

       Whether defendant is entitled to the credit is a question of statutory interpretation. The

primary rule of statutory construction is to ascertain and give effect to the intent of the

legislature and that inquiry begins with the plain and ordinary meaning of the statute. People v.

Campa, 217 Ill. 2d 243, 252, 840 N.E.2d 1157, 1164 (2005). Although defendant is correct that

the $20 fine applies only where "no other fine is imposed" (725 ILCS 240/10(c) (West

2004)), he misconstrues the nature of the $4 additional penalty as set forth in section 5-9-1(c-

9) of the Code (730 ILCS 5/5-9-1(c-9) (West 2004)). The statute provides in pertinent part as

follows:



       1
           We note that this $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
in effect at the time of defendant=s crime and conviction. However, the legislature later
eliminated section 5-9-1(c-9) in its entirety and replaced it with A(Blank)@ effective August 22,
2005. Pub. Act 94-652, eff. August 22, 2005 (amending 730 ILCS 5/5-9-1(c-9)). Accordingly,
this $4 additional penalty no longer exists.




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1-04-2219

                    A(c-9) There shall be added to every fine imposed in sentencing

                 for a criminal * * * offense, * * * an additional penalty of $4

                 imposed. * * * Such additional penalty of $4 shall be assessed by

                 the court imposing the fine and shall be collected by the circuit

                 clerk in addition to any other fine, costs, fees, and penalties in the

                 case. * * * The additional penalty of $4 shall be in addition to any

                 other fine, costs, fees, and penalties and shall not reduce or affect

                 the distribution of any other fine, costs, fees, and penalties.@ 730

                 ILCS 5/5-9-1(c-9) (West 2004). (Emphasis added).

Thus, the plain language of the statute provides that the $4 assessment is an amount to be

surcharged as an additional penalty; it is considered after the imposition of any basic fines

provided for by other legislation. Accordingly, in the present case, after the imposition of the

$20 fine, an additional penalty of $4 was surcharged, and did not reduce or affect the distribution

of the $20 fine. Therefore, the circuit court properly assessed both the $20 fine and the $4

additional penalty.

        Defendant next contends that the circuit court erred in failing to afford him a $5-per-day

credit against the $4 additional penalty for the 31 days he spent in custody prior to sentencing.

Defendant did not ask the circuit court to offset this monetary assessment with a $5-per-day

credit for the days he spent in custody. Nevertheless, we address this issue because defendant may

raise the issue of credit on appeal even though he has not first applied for the credit in the circuit court.

People v. Woodard, 175 Ill. 2d 435, 457-58, 677 N.E.2d 935, 946 (1997).



                                                         4
1-04-2219

        Under section 110-14 of the Code of Criminal Procedure of 1963, for each day or part of a

day spent in custody before sentencing, a defendant is entitled to a credit of $5 against fines imposed as a

result of the conviction. 725 ILCS 5/110-14 (West 2004). Whether section 110-14

applies to a particular amount is a question of statutory construction. People v. Hare, 119 Ill. 2d

441, 447, 519 N.E.2d 879, 881 (1988). The plain language of section 110-14 provides that the

credit is limited to "fines" and does not apply to any other amount such as costs or fees. 725 ILCS

5/110-14 (West 2002); People v. Stewart, 343 Ill. App. 3d 963, 980, 799

N.E.2d 1011, 1025 (2003). Section 5-9-1(c-9) imposes an Aadditional penalty@ of $4 to

be remitted to the State Treasurer and deposited into the Traffic and Criminal Conviction Surcharge

Fund. 730 ILCS 5/5-9-1(c-9) (West 2004). Section 110-14 does not explicitly provide

for credit against such an Aadditional penalty.@ 725 ILCS 5/110-14 (West 2004).

        To resolve this issue we must determine whether the legislature intended the penalty to be treated as

a fine, that is, a pecuniary punishment imposed as part of a sentence, or something else, like a fee or court

cost, which is a charge taxed by a court, compensatory in nature. People v. Elizalde, 344 Ill. App.

3d 678, 682, 800 N.E.2d 859, 863 (2003); People v. Littlejohn, 338 Ill.

App. 3d 281, 283, 788 N.E.2d 339, 341 (2003). The term Apenalty@ is defined as

Apunishment imposed on a wrongdoer, esp. in the form of imprisonment or fine.@ Black=s Law Dictionary

1153 (7th ed. 1999). Thus, the popularly understood meaning of Apenalty@ includes punishment in the

form of a fine.

        Nevertheless, the State maintains that although the legislature uses the term Apenalty@ in the

statute, it intended for penalties to be separate and distinct from fines and, therefore, not subject to the

$5-per-day credit. In support of its argument, it cites People v. Williams, 142 Ill. App. 3d 266,

                                                        5
1-04-2219

275, 481 N.E.2d 941, 946 (1986), in which the court considered a similar subsection of a

prior version of section 5-9-1 and found that the statutory language in force at that time evinced a

legislative intent to distinguish the amount payable from a fine. The State maintains that the same rationale

can be applied here to hold that defendant is not entitled to credit on the $4.

        We find Williams inapposite because the present version of section 5-9-1 differs significantly

from the version at issue in Williams. At the time Williams was decided, section 5-9-1(c-9) of the

Code did not exist and the section the court relied upon, section 5-9-1(c), was drastically different.

Compare Ill. Rev. Stat. 1986, ch. 38, par. 1005-9-1(c) with 730 ILCS 5/5-9-1(c)

(West 2004). Section 5-9-1(c) provided that every fine shall include an amount payable to the

Traffic and Criminal Conviction Surcharge Fund. Ill. Rev. Stat. 1986, ch. 38, par. 1005-9-

1(c). Whereas, the current version of section 5-9-1(c) specifically refers to the amount assessed as an

Aadditional penalty@ and explicitly excludes the penalty from presentence credit. 730 ILCS 5/5-9-

1(c) (West 2004). Thus, the holding in Williams, distinguishing the amount payable to the Fund from a

fine, was based upon the statutory language then existing, and not based upon the current language of section

5-9-1(c) or (c-9) which both assess a Apenalty.@

        Furthermore, two months after Williams, in People v. Wilson, 144 Ill. App. 3d 290,

494 N.E.2d 849 (1986), the court, without discussing Williams, found that the amount payable

to the Fund under section 5-9-1(c) was a surcharge on the basic fine as determined by other legislation,

but that the surcharge had the same general characteristics as the basic fine to which it was attached.

Wilson, 144 Ill. App. 3d at 293, 296, 494 N.E.2d at 851, 853. Accordingly, for

all of the foregoing reasons, the State=s reliance on Williams is unpersuasive.

        Additionally, we reject the State=s argument that merely because the Fund was created for the

                                                       6
1-04-2219

purpose of reimbursing law enforcement agencies, the legislature did not intend for the money collected for

this Fund to be treated as a fine. The claim that all amounts assessed to reimburse the government are

never treated as a fine is without foundation and is incorrect. Indeed, a portion of all fees, fines, costs, and

additional penalties assessed are disbursed into the Traffic and Criminal Conviction Surcharge Fund. See

705 ILCS 105/27.6 (West 2004). Accordingly, the State=s argument lacks merit.

        Where there is no indication that the legislature intended to depart from the plain meaning of the

statute, the additional penalty imposed on defendant is a pecuniary punishment in the nature of a fine. Thus,

pursuant to section 110-14, the fine is to be offset by the $5-per-day credit. We note that when the

legislature has chosen to exclude an amount from presentence credit under section 110-14 it has explicitly

done so. See, e.g., 730 ILCS 5/5-9-1(c) (West 2004) (Aadditional penalty shall not be

considered a part of the fine for purposes of any reduction in the fine for time served either before or after

sentencing@); 730 ILCS 5/5-9-1(c-5) (Aadditional fee of $100 shall not be considered a part of

the fine for purposes of any reduction in the fine for time served either before or after sentencing@). Had

the legislature intended to exclude section 5-9-1(c-9) from the $5-per-day credit, the legislature could

have specifically made such an exclusion. See People v. Fort, 362 Ill. App. 3d 1, 6, 839

N.E.2d 1064, 1069 (2005) (applying the same rationale to allow credit against a drug

assessment).

        Accordingly, pursuant to section 110-14, defendant should be awarded a credit of $4 against his

Traffic and Criminal Conviction Surcharge Fund penalty because the amount of the credit may not exceed

the amount of the fine. 725 ILCS 5/110-14 (West 2004). The sentencing order of the circuit

court of Cook County shall be modified to reflect this credit. We otherwise affirm defendant=s conviction

and sentence.

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1-04-2219

      Affirmed as modified.

      HOFFMAN, P.J., and KARNEZIS, J., concur.




                REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
            _________________________________________________________________

              THE PEOPLE OF THE STATE OF ILLINOIS,

                     Plaintiff-Appellee,

                     v.

              LEONARD JAMISON,

                     Defendant-Appellant.

            ________________________________________________________________

                                             No. 1-04-2219

                                      Appellate Court of Illinois
                                     First District, Third Division

                                    Filed: April 12, 2006
            _________________________________________________________________
                         OPINION UPON DENIAL OF REHEARING

                      JUSTICE THEIS delivered the opinion of the court.
                           Hoffman, P.J., and Karnezis, J., concur.
            _________________________________________________________________

                        Appeal from the Circuit Court of Cook County
                         Honorable Patrick J. Morse, Judge Presiding
            _________________________________________________________________

For APPELLANT,                Michael J. Pelletier, State Appellate Defender
                              Emily Atwood, Assistant Appellate Defender

                                               8
                Office of the State Appellate Defender
                203 N. LaSalle St., 24th Floor
                Chicago, IL 60601

For APPELLEE,   Richard A. Devine, State=s Attorney
                James Fitzgerald, Assistant State=s Attorney
                Mary Boland, Assistant State=s Attorney
                Natosha Cuyler-Sherman, Assistant State=s Attorney
                300 Richard J. Daley Center
                Chicago, IL 60602
