People v. Gutierrez

2012 IL 111590

356 Ill.Dec. 752

962 N.E.2d 437

The PEOPLE of the State of Illinois, Appellee,

v.Elias GUTIERREZ, Appellant.

No. 111590.

Supreme Court of Illinois.

Jan. 20, 2012.

Michael J. Pelletier, State Appellate Defender, Thomas A. Lilien, Deputy Defender, and Jaime L. Montgomery, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Elgin, for appellant.

Lisa Madigan, Attorney General, of Springfield, and Michael J. Waller, State's Attorney, of Waukegan (Michael A. Scodro, Solicitor General, and Michael M. Glick and Joshua M. Schneider, Assistant Attorneys General, of Chicago, of counsel), for the People.

OPINION

Justice THOMAS delivered the judgment of the court, with opinion.

[356 Ill.Dec. 753] ¶ 1 At issue is whether the appellate court properly remanded the cause for notice and a hearing on the defendant's ability to pay a public defender fee when the circuit clerk, on its own, improperly imposed the fee. We hold that the fee should have been vacated outright.

¶ 2 BACKGROUND

¶ 3 Defendant, Elias Gutierrez, was convicted of predatory criminal sexual assault of a child and sentenced to 20 years' imprisonment. Defendant appealed, arguing that several fines and fees had been improperly imposed. The appellate court allowed him to supplement the record with a certified copy of a “Party Finance Summary Query” that detailed the fines and fees that had been imposed by the Lake County circuit clerk. One of these was a $250 public defender fee. 405 Ill.App.3d 1000, 1001–02, 345 Ill.Dec. 180, 938 N.E.2d 619.

¶ 4 The appellate court agreed with defendant that the public defender fee had to be vacated pursuant to section 113–3.1(a) of the Code of Criminal Procedure of 1963 (725 ILCS 5/113–3.1(a) (West 2008)) because defendant had not been provided with notice and a hearing. 405 Ill.App.3d at 1002, 345 Ill.Dec. 180, 938 N.E.2d 619. Relying on People v. Love, 177 Ill.2d 550, 227 Ill.Dec. 109, 687 N.E.2d 32 (1997), the court held that the fee could not be imposed unless defendant had been provided with both: (1) notice that the trial court was considering imposing the fee; and (2) a hearing that focused on the defendant's financial circumstances and his ability to pay reimbursement for appointed counsel. Id. at 1002–03, 345 Ill.Dec. 180, 938 N.E.2d 619. The court, however, disagreed with defendant's argument that the fee should be vacated outright. The court explained that it had already held in People v. Schneider, 403 Ill.App.3d 301, 303–04, 342 Ill.Dec. 798, 933 N.E.2d 384 (2010), that cases in which the fee is imposed without notice and a hearing should be remanded for a hearing on the defendant's ability to pay. Id. at 1003, 345 Ill.Dec. 180, 938 N.E.2d 619. In Schneider, the defendant had argued that the case could not be remanded for a hearing because section 113–3.1(a) requires that the hearing be held no later than 90 days after the entry of a final judgment and that time period had already expired. The Schneider court noted that this court had remanded the matter for a hearing in Love and stated that it viewed Love as binding. Schneider, 403 Ill.App.3d at 304, 342 Ill.Dec. 798, 933 N.E.2d 384. Here, the appellate court followed Schneider and remanded the cause for a hearing, despite the fact that the 90–day time period had long since expired. 405 Ill.App.3d at 1003, 345 Ill.Dec. 180, 938 N.E.2d 619. We allowed defendant's petition for leave to appeal. Ill. S.Ct. R. 315 (eff. Feb. 26, 2010).

¶ 5 ANALYSIS

¶ 6 Jurisdiction

¶ 7 Before proceeding to the merits, we must address the State's contention that the appellate court lacked jurisdiction to consider defendant's appeal. The State argues that the appellate court lacked jurisdiction for two reasons: (1) the fee was ordered by the circuit clerk rather than by the court, and the appellate court's jurisdiction is generally limited to reviewing final orders of the circuit court; and (2) defendant's notice of appeal did not indicate that he was appealing the assessment of any fees or fines. We address the notice of appeal question first.

¶ 8 The State argues that defendant's notice of appeal was insufficient to confer jurisdiction on the appellate court to review the assessment of any fees or fines. The State cites People v. Smith, 228 Ill.2d 95, 104, 319 Ill.Dec. 373, 885 N.E.2d 1053 (2008), for the proposition that “Illinois courts have held that a notice of appeal confers jurisdiction on a court of review to consider only the judgments or parts thereof specified in the notice of appeal.” The State notes that defendant filed two notices of appeal. The first indicated that defendant was appealing the denial of his motion to reconsider sentence, but contained the wrong date. The notice of appeal listed the date as August 1, 2008, which was the date of sentencing. Defendant then filed an amended notice of appeal in which he corrected the date to December 23, 2008, which was the date the court's final judgment was entered. Neither notice listed the assessment of any fines or fees and thus, according to the State, neither of the notices “adequately set out the judgment complained of.” See Smith, 228 Ill.2d at 105, 319 Ill.Dec. 373, 885 N.E.2d 1053. We disagree.

¶ 9 In Smith, the defendant's notice of appeal was from the circuit court's judgment of conviction, entered on November 10, 2004, but the defendant's argument concerned the trial court's denial of his “motion for sentence correction,” and that order was entered on February 21, 2006. Id. at 103, 319 Ill.Dec. 373, 885 N.E.2d 1053. While acknowledging that notices of appeal are to be construed liberally, this court held that no matter how liberally it construed defendant's notice of appeal, it could not fairly and adequately be read as encompassing the court's order of February 21, 2006. Id. at 105, 319 Ill.Dec. 373, 885 N.E.2d 1053.

¶ 10 Smith is entirely distinguishable. In that case, we held that a notice of appeal, no matter how liberally construed, could not encompass a judgment entered over a year after the judgment identified in the notice. Here, by contrast, defendant appealed from the final judgment in his case. His first notice of appeal indicated that he was appealing from the denial of his motion to reconsider the sentence, but listed the wrong date. Defendant then filed an amended notice that listed the date December 23, 2008, the date of final judgment. Defendant's notice of appeal substantially conformed to the form provided in Rule 606(d) (Ill. S.Ct. R. 606(d) (eff. Sept.1, 2006)), but omitted the section where a defendant can identify if he is appealing from anything other than his conviction.

¶ 11 In People v. Lewis, 234 Ill.2d 32, 332 Ill.Dec. 334, 912 N.E.2d 1220 (2009), the defendant argued that the trial court erred in imposing a street value fine without an evidentiary hearing. The defendant's notice of appeal, however, stated that he was appealing from the denial of his motion to suppress. Id. at 35–36, 332 Ill.Dec. 334, 912 N.E.2d 1220. The defendant's notice of appeal substantially conformed with the form provided in Rule 606(d) and left blank the section in which he could have indicated if he was appealing from any order other than his conviction. Id. at 38, 332 Ill.Dec. 334, 912 N.E.2d 1220. The defendant did not raise any issue on appeal regarding the denial of his motion to suppress; rather, he merely contested the imposition of a street value fine without an evidentiary hearing. The State argued that the appellate court did not have jurisdiction to address the street value fine issue. The appellate court did not address the State's jurisdictional argument, and the State raised the argument again in this court. This court rejected the State's argument and held that the notice was sufficient to confer appellate jurisdiction. This court noted that the notice did not indicate that defendant was appealing anything other than his conviction. Id. at 38, 332 Ill.Dec. 334, 912 N.E.2d 1220. The Lewis court also pointed out that an order denying a motion to suppress is not appealable. Id. at 38, 332 Ill.Dec. 334, 912 N.E.2d 1220. Thus, Lewis concluded that the notice adequately informed the State that defendant was appealing from his conviction. Id. at 39, 332 Ill.Dec. 334, 912 N.E.2d 1220.

¶ 12 We likewise hold here that, where defendant's notice of appeal listed the date of final judgment and did not indicate that defendant was appealing anything other than his conviction, the State was adequately informed of the nature of defendant's appeal, and the appellate court had jurisdiction. The State notes that there is some confusion as to when the circuit clerk imposed the public defender fee. The Party Finance Summary Query provided to defendant lists two dates: “FILED 08/22/2007,” and “STATUS 08/01/2008.” The “filed” date is one day after the complaint was filed, and the “status” date is the date that defendant was sentenced. The logical inference is that the fee was assessed on the date that defendant was sentenced. Thus, the notice of appeal, which clearly indicated that defendant was appealing from the court's final judgment, was sufficient to confer jurisdiction on the appellate court to consider defendant's entire conviction.

¶ 13 The State also argues, however, the appellate court had no authority to review the fee because it was not embodied in any order of the circuit court. The State points out that the fee was improperly imposed by the circuit clerk. According to the State, when defendant learned that the fee had been improperly imposed, he should have moved to vacate it in the circuit court. If the court would have denied the motion, then defendant would have had an appealable order. The State argues that this would prevent a squandering of scarce appellate judicial resources. The State acknowledges, with a long string citation, that the appellate court regularly acts on fines and fees improperly imposed by circuit clerks, but it...