People v. Higgins
13 N.E.3d 169
Ill. App. Ct.2014Background
- On July 19, 2010, Daniel Higgins struck Dustin Martin with a tow truck; Higgins was later convicted at bench trial of aggravated reckless driving and two counts of aggravated assault (merged at sentencing).
- At sentencing (July 12, 2012) the court imposed 28 months' probation, ordered $1,900 restitution to the victim, a $250 DNA analysis fee, a $30 Children’s Advocacy fine, a $250 fine, and directed the clerk to pay restitution from Higgins's bond before fines/fees.
- The circuit clerk also assessed additional charges (e.g., $60 “CR. Surcharge Stat[e],” $24 “Driver’s Education,” $24 “Victim Fund,” $125 “Fine Agency”), which the court did not explicitly impose.
- Higgins did not object at sentencing to restitution procedure or fines/fees; he appealed contesting (1) restitution procedure and (2) the $250 DNA fee (arguing $200 applied).
- The appellate court reviewed whether restitution order was forfeited/void, whether bond application order complied with statute, whether the DNA fee violated ex post facto principles, and whether various clerk-imposed charges were properly imposed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether restitution order must be vacated for failure to consider ability to pay and set payment schedule | State: Higgins forfeited the claim by not raising it at sentencing; alternatively, evidence supported ability to pay | Higgins: Court failed to consider ability to pay and set payment schedule, so restitution order must be vacated | Forfeited. Restitution order is voidable (not void) because statute does not require preliminary ability-to-pay finding; claim forfeited. Court affirmed restitution but directed correction re: bond application and optional reconsideration of ability to pay on remand. |
| Whether court could order bond money to be applied to restitution before fines/fees | State: If error, it should be corrected; court may direct payment from bond | Higgins: State asked court to apply bond to restitution first; that invitation bars challenge | Vacated. Statute requires bond be applied first to fines and costs; ordering bond to pay restitution first exceeded authority and is void. Remand to consider bond application after fines/costs and to consider ability-to-pay/payment schedule. |
| Whether $250 DNA analysis fee (statute increased from $200 to $250 before sentencing) violates ex post facto clause | State: DNA fee is a compensatory fee, not punishment; ex post facto does not apply | Higgins: Increased fee punishes him for past conduct; $200 should apply | Affirmed. DNA analysis charge is a fee (not a punitive fine); fee in effect at sentencing ($250) may be imposed. |
| Whether clerk-imposed charges (CR surcharge, Driver's Education, Victim Fund, Fine Agency) and failure to impose a $20 serious-traffic-violation fee were proper | State: Charges may be recalculated; court should clarify Fine Agency; $20 serious-traffic fee required for reckless-driving conviction | Higgins: no response on reply brief | Vacated clerk-imposed fines. Court lacked authority to have clerk impose those mandatory fines/assessments. Remand for trial court to calculate/reimpose proper amounts, clarify the $125 Fine Agency assessment, and impose $20 serious-traffic-violation fee (amount in effect at time of offense controls for fines). |
Key Cases Cited
- People v. White, 146 Ill. App. 3d 998 (restitution is part of sentence)
- People v. Gray, 234 Ill. App. 3d 441 (post-1983 statute does not require preliminary ability-to-pay finding before ordering restitution)
- People v. Felton, 385 Ill. App. 3d 802 (restitution void when ordered for dismissed charges)
- People v. Thornton, 286 Ill. App. 3d 624 (restitution void when paid to non-victim)
- People v. Evangelista, 393 Ill. App. 3d 395 (clerk cannot levy fines that must be imposed by court)
- People v. Reed, 177 Ill. 2d 389 (statutorily mandatory fines are judicial acts)
- People v. Dalton, 406 Ill. App. 3d 158 (distinguishing fees from punitive fines)