On August 2, 1988, following a jury trial in the circuit court of Greene County, defendant Melvin Atwood was convicted of various drug offenses, including: three counts of unlawful delivery of cannabis, one count of unlawful possession of cannabis, five counts of unlawful delivery of a controlled substance, and one count of unlawful possession of a controlled substance. He was subsequently sentenced to two, consecutive seven-year terms of imprisonment for two convictions of delivery of a controlled substance containing cocaine. Lesser terms of imprisonment were imposed for the other cоnvictions and were ordered to run concurrently with the first seven-year term of imprisonment. A fine, costs, reimbursement to the county for defendant’s use of court-appointed defense counsel, and a lien against defendant’s real and
Defendant appeals, contending the court erred (1) in refusing to suppress evidence seized pursuant to a search warrant; (2) in ordering him to reimburse Greene County for the services of appointed defense counsel; (3) in sentencing him; and (4) in failing to give him sufficient credit upon his sentence for time he had spent in custody. We affirm the convictions but reverse thе sentences and the order for reimbursement to the county. We remand for resentencing and for a new hearing in regard to reimbursement. In regard to credit for time spent in custody, the State agrees that upon any remand, the defendant is entitled to credit for 197 days against his sentence of imprisonment and $985 credit against his fines. We so order.
As defendant does not dispute the sufficiency of the evidence
Joe Gromelski, a paid informant, testified in great detail to purchases he had made from defendant of marijuana and certain narcotic drugs on the dates alleged in the various counts of the information filed against defendant. This testimony was corroborated, also in great detail, by that of police officers who had also been involved (1) in setting up the purchases; (2) in searching Gromelski and his vehicle before he left to make the purchases; and (3) in following him to defendant’s home. Gromelski and the officers testified to a total of six purchases made between December 1987 and February 29,1988.
Deputy sheriff Rick Snyder testified at trial that, after Gromelski had made a purchase from defendant on February 29, 1988, Snyder
Defendant called a number of witnesses whose testimony was substantially similar in that they stated they had never seen defendant sell or give narcotics or cannabis to Gromelski on February 29, 1988, or at any other time.
Defendant testified that (1) defendant was purchasing the hоuse in which he was residing; (2) Gromelski owed defendant money for rent when Gromelski stayed with defendant and for money defendant had loaned Gromelski; (3) Gromelski paid him $270 on that debt on February 29, 1988, the night he was arrested; (4) he did not sell drugs to Gromelski that evening or any of the other dates alleged in the information; (5) he had never sold drugs or given drugs of any kind to Gromelski; (6) he purchased cocaine and methamphetamines from Gromelski several times after November 1987; and (7) on February 29, 1988, he and Gromelski used Gromelski’s cocaine, but defendant did not possess cocaine, methamphetamine or cannabis that evening.
In rebuttаl, the State introduced into evidence a tape recording of a conversation allegedly held between defendant and Gromelski on February 29, 1988. The tape recording, which resulted from a hidden taping device on Gromelski, was played to the jury for the purpose of impeaching defendant’s trial testimony. In addition, the court cautioned the jury that the tape was being used for the limited purpose of determining defendant’s credibility and the believability of the defendant and the informant.
The record concerning the issuance of the search warrant is most unusual. At a time which is uncertain, defеndant, acting pro se, filed a motion to quash the previously mentioned search warrant and to suppress the money seized. This motion is not in the record. Subsequently, this motion was replaced by a motion by court-appointed counsel. This motion was considered by the trial judge after the jury had been selected and sworn but before opening statements. The trial judge had also been the judge who issued the warrant. The judge indicated he was going to deny the motion and then did so. Defense counsel did not attempt to offer any evidence or make any objection to the procedure.
We сonsider first the ruling on the motion to suppress. Defendant maintains the circuit court erred in this respect (1) by failing to hold an evidentiary hearing on the motion; (2) by taking judicial notice of the transcript of the testimony presented at an ex parte hearing on the
Section 108 — 3(a) of the Code of Criminal Procedure of 1963 (Code) provides for courts to issue search warrants “upon the written complaint of any person under oath or affirmation which states facts sufficient to show probable cause.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 38, par. 108 — 3(a).) The record does not contain the complaint or any supporting affidavits upon which the warrant was issued. The record does contain a report of proceedings which contains testimony of Deputy Snyder, who was apparently the complainant. This testimony was taken by the court upon presentation of the complaint for a search warrant. For reasons we will explain, we need not consider whether, under Illinois law, such a transcript can be thе basis for the issuance of a search warrant. See People v. Elias (1925),
Section 114 — 12(b) of the Code provides that when a written motion to suppress has been filed stating “facts showing wherein [a] search and seizure [has been] unlawful[,] [the] judge shall receive evidence on any issue of fact necessary to determine the motion.” (Emphasis added.) (Ill. Rev. Stat. 1963, ch. 38, par. 114 — 12(b).) Here, defendant’s motion to suppress did not challenge the manner in which the warrant was executed, but contended the warrant was issued without a showing of probable cause. Ordinarily the question of whether probable cause wаs shown for the issuance of a search warrant must be determined upon the basis of the verified allegations of the complaint for the issuance of the warrant or supporting documents. (People v. Bak (1970),
Here, the closеst assertion of the motion to suppress to invoke the Franks doctrine was a statement that an allegation of the complaint for warrant contending defendant was a convicted felon was falsely made “with negligent regard for the accuracy of the allegation, when a single check of the records maintained in the Greene County sheriff’s office would have revealed the true status of the defendant’s criminal history.” We do not deem that statement to charge the complainant
We note that the failure to hold an evidentiary hearing might also be justified upon the basis the defense did not request any such hearing, voiced no objection to proceeding without such a hearing, and made no offer of proof of evidence which would be presented at such a hearing. We also note that the question of whether defendant was a convicted felon had little bearing upon the question of whether probable cause existed for the issuance of the search warrant.
While we do not decide whether a search warrant may be issued in Illinois upon the basis of testimony under oath taken before a judge and transcribed in a report of proceedings, we are satisfied no error resulted here from any consideration the court gave to such a transcript. The record clearly shows that a complaint was presented to the judge who issued the warrant, but that complaint has not been made a part of the record on appeal. As we have indicated, absent the applicability of Franks, the determination of whether probable cause existed for the issuance of the warrant depends upon the allegations of that complaint. (Bale,
Generally, the failure of an appellant to supply a portion of the record of the proceedings in the trial court creates a presumption on review that the missing record would support the trial court’s order. (Foutch v. O’Bryant (1984),
Defendant correctly points out that section 114 — 12(e) of the Code states “[t]he order or judgment granting or denying the motion [to suppress evidence illegally seized] shall state the findings of facts and conclusions of law upon which the order or judgment is based.” (Ill. Rev. Stat. 1987, ch. 38, par. 114 — 12(e).) Here, the record shows the court made no such findings or conclusions in its order denying the motion to suppress. Defendant maintains this was reversible error. In People v. Winters (1983),
On the basis of the record presented, we conclude the circuit court did commit reversible error in requiring defendant to reimburse Greene County in the sum of $5,000 for the services of the counsel appointed to represent defendant. A somewhat detailed discussion is necessary to explain our ruling.
Section 113 — 3 of the Code provides for the appointment of counsel by the court for indigent defendants, and subsection 113 — 3(c) provides for a procedure whereby a fee to be paid by the county to “counsel other than the Public Defender” shall be determined. (Ill. Rev. Stat. 1987, ch. 38, par. 113 — 3(c).) The record here indicates that throughout most of the pretrial proceedings defendant was represented by a court-appointed attorney, and the record gives no indication that attorney was a public defender. The record also does not disclose whether that attorney had sought payment from Greene County for his services at the time the reimbursement order was entered, but he would not likely have done so as the reimbursement order was entered at sentencing.
Section 113 — 3.1(a) of the Code sets forth a procedure whereby whenever counsel is appointed under section 113 — 3 of the Code to represent an accused in the trial court or under Supreme Court Rule 607(a) (107 Ill. 2d R. 607(a)) to represent such a person on appeal, “the court may order the defendant to pay” a “reasonable” sum to reimburse the county or the State fоr such services. (Ill. Rev. Stat. 1987, ch. 38, par. 113 — 3.1(a).) For a felony, the amount which can be awarded the government cannot exceed $5,000 for representation in the trial court. (Ill. Rev. Stat. 1987, ch. 38, par. 113 — 3.1(b).) This was the statutory provision under which the court acted in entering the $5,000 reimbursement order. In People v. Brown (1987),
“The court shall consider all relevant circumstances, including but not limited to the time spent while court is in session, other time spent in representing the defendant, and expenses reasonably incurred by counsel.” Ill. Rev. Stat. 1987, ch. 38, par. 113— 3(c).
In this case, the order to reimburse the county in the sum of $5,000 was imposed upon the defendant at the conclusion of the sentencing. The record gives no indication the defendant or his counsеl was given any forewarning. After the court had pronounced the order, the defendant said nothing, and his counsel stated he would be filing a notice of appeal but made no reference to the reimbursement order. The only evidence of the reimbursement order appears in the report of proceedings. The common law record gives no indication any reimbursement for services of counsel was ever ordered. Section 113 — 3(b) of the Code states that when a defendant seeks appointed counsel, “[t]he court shall require an affidavit signed by” that defendant to be filed, and that affidavit shall contain “sufficient information to ascertain the assets and liabilities of that defendant.” (Ill. Rev. Stat. 1987, ch. 38, par. 113 — 3(b).) Section 113 — 3.1(a) of the Code requires the court, in considering reimbursement to be ordered, to consider that affidavit and other information submitted “pertaining to the defendant’s financial circumstances.” (Ill. Rev. Stat. 1987, ch. 38, par. 113 — 3.1(a).) No such affidavit was ever obtained from defendant here.
Section 113 — 3.1(a) of the Code provides for a reimbursement hearing to be “conducted on the court’s own motion or on motion of the State’s Attorney at any time after appointment оf counsel” but no later than 90 days after the court’s final order in the case. (Ill. Rev. Stat. 1987, ch. 38, par. 113 — 3.1(a).) We do not interpret that provision to authorize the court sua sponte to pronounce a reimbursement order, as apparently done here, without warning to the defense and without the defense having an opportunity to present information which might bear upon the question involved.
From the record before it, the court had the following information which would bear on the amount which might be properly assessed for the services rendered: (1) at the time when defendant requested release on bail bond before trial, defendant presented an appraisal indicating he owned a dwelling of a value of $21,000; (2) the presentence investigation report indicated defendant was living on some sort of disability benefits and owed $5,000 to $6,000 on a debt secured by a lien on his dwelling; (3) defendant was required to pay that debt at a rate
The State maintains any error was waived, becausе no complaint concerning the reimbursement order was made in the trial court, and the issue is being raised for the first time on appeal. When error in the determination of a section 113 — 3.1 reimbursement order has been raised for the first time on appeal, this court held the question to have been waived in People v. Nash (1989),
The record in Nash showed the court had carefully applied a fair procedure. At arraignment, the court infоrmed the defendant he would be assessed a fee of $1,000, to be paid at the rate of $25 per month, for the services of a court-appointed salaried public defender. At the conclusion of the case the court gave further consideration to the recoupment order and concluded it was proper. Prior to the reconsideration, the court had offered the defendant an opportunity to present evidence on the recoupment question, and the defendant chose not to do so. In regard to the defendant’s ability to pay, the record showed dеfendant had been placed on probation subject to various conditions, which included a short period of imprisonment and a requirement to pay restitution not to exceed $1,800 for therapy for the victim. The sum of $300 from defendant’s bond deposit was available toward that obligation. Thus, the defendant was not burdened with large obligations, would soon be free and able to make the modest payment required. The opinion gives no indication the defendant had not been required to furnish the financial affidavit described in sections 113 — 3(b) and 113 — 3.1(a) of the Code. Thus, the court had complete information supporting the defendant’s ability to make reimbursement. The public
In Van Ostran, a defendant was ordered to reimburse a county furnishing him legal services the sum of $50. Court-appointed counsel represented the defendant in plea proceedings and at sentencing. The amount of the reimbursement was obviously not excessive for the services rendered, and the record showed the defendant had made a bond deposit in the sum of $1,000 from which the $50 could be drawn. In Cozad, the court also imposed the reimbursement order at the time of arraignment. At that time, the court had the required affidavit before it. The defendant then entered a plea of guilty, was placed on probation, was later charged with violation of that probation, had his probation revoked at a subsequent hearing and was sentenced to imprisonment after his probation was revoked. He attempted to raise the issue of the original reimbursement order on the appeal from the revocation and sentence of imрrisonment. The prime basis of the waiver there was that the determination of the reimbursement required became res judicata when no appeal was taken after the sentence to probation. (People v. Stueve (1977),
We deem two other aspects of the instant case to be highly significant. One concerns a situation here somewhat analogous to that in People v. Saldivar (1986),
“To preserve any error of the court made [when pronouncing sentence], it was not necessary for counsel to interrupt the judge and point out that he was considering wrong factors in aggravation, especially in light of the argument that had preceded the ruling.” (Emphasis аdded.) (Saldivar,113 Ill. 2d at 266 ,497 N.E.2d at 1142 .)
Prior to the statement by the sentencing judge, counsel for the State and defense had presented arguments as to the proper aggravating and mitigating factors.
Here, the record does not indicate the defense was aware of any issue of reimbursement until the court sua sponte ordered reimbursement.
The other significant aspect of this case was that the court-appointed counsel apparently was not a salaried public defender but a private attorney to be paid under the provisions of section 113 — 3 of the Code. Under our holding in Brown, the same factors would be used to determinе defense counsel’s compensation as should have been used to determine the amount of reimbursement by defendant to be ordered pursuant to section 113 — 3.1, except that the ability of the defendant to pay is not a factor under section 113 — 3. Thus, under these circumstances the two determinations are closely intertwined.
In People v. Robinson (1979),
Our concern with the relationship between the private counsel’s compensation and the amount of reimbursement does not rise from any belief defense counsel here refrained from taking any step in order to protect his remuneration. Most likely he did not take steps the State would deem necessary to preserve error because he was so surprised by the judge’s ruling or because, consistent with Saldivar, he did not deem any such action necessary. Nevertheless, the procedures used here to impose a reimbursement order on defendant were erroneous and that error was not waived.
Appointment of other counsel to represent a defendant in a reimbursement proceeding is neither necessary, desirable, nor practical. However, because of the relationship between the reimbursement
The errors in sentencing arose from the trial court’s violation of the rule of People v. Conover (1981),
The Conover court pointed out that in providing for the receipt of “compensation for committing the offense” (Ill. Rev. Stat., 1988 Supp., ch. 38, par. 1005 — 5—3.2(a)(2)) as an aggravating factor to be used in sentencing, the General Assembly did not intend to include, as compensation, that which the offender received as the proceeds of the offense but, rather, that which another gave the offender for the commission of the offense. (Conover,
Defendant also maintains the court erred in considering the harm caused by defendant’s conduct as an aggravating factor. In People v. Maxwell (1988),
The State points out that the issue of improper consideration of aggravating factors was raised by defendant for the first time on appeal. However, as we have explained, the Saldivar court held that the defense is not required to object to the inclusion of improper factors being taken into consideration while the court is pronouncing sentence. (See People v. Martin (1988),
The State concedes defendant was improperly sentenced on count X (unlawful possession of a controlled substance) to five years’ imprisonment for a Class 4 felony, the maximum incarceration for which is three years’ imprisonment. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8— 1(a)(7).) The State also concedes the defendant is entitled to sentence credit for 197 days which he sрent while incarcerated for this offense as well as $985 as credit against his fines.
As the errors we have cited concern most of the sentences and the sentences are interrelated, we deem it necessary to have re-sentencing as to all convictions. Accordingly, we affirm all convictions and reverse all sentences. We also reverse the judgment for reimbursement and imposing a lien therefore. We remand to the circuit court of Greene County for new hearings as to sentencing and reimbursement. All sentences imposed shall be consistent with this opinion.
Affirmed in part, reversed in part, and remanded with directions.
KNECHT, P.J., and LUND, J., concur.