*1 appel- judgment of the therefore affirm the missed. We late court.
Affirmed. dissenting: HEIPLE, CHIEF JUSTICE liability majority expands habitability The decision mechanics, artisans, contractors, for all and home already significant renovators who make additions to existing liability structures. This new runs favor of buyers priv- subsequent complete in the absence of home ity opens up pos- of contract. This is new law which vast opinion for new leaves to sibilities causes action. "significant future decisions the definition of addition.” expanded liability That this will increase the cost of improvements home cannot be doubted. It is a basic law society economics there is no free lunch. For a already wallowing suits, that is in law it seems to me judicial expansion liability that this into new and undefined areas would be better left to the state legislature. Accordingly, respectfully I dissent. joins
JUSTICE NICKELS in this dissent.
(No. 80374. Appel- ILLINOIS, THE PEOPLE OF THE STATE OF Appellee. lant, WOODARD, v. ROBERT LOUIS Opinion February Rehearing denied filed 1997. March 1997. *3 MILLER,J., dissenting. Ryan, General,
James E. Attorney Springfield, of and Duffy, Patrick Attorney, State’s City of Mound (Barbara Preiner, General, A. Solicitor Arleen C. Anderson Darryl Simko, Attorneys B. Assistant General, of Chicago, Goetten, and Norbert J. Robert J. Mansfield, Biderman and Charles F. of the Office of the Prosecutor, Springfield, Attorneys Appellate State’s counsel), People. for the Defender, Kirwan, and Lawrence Deputy Daniel M. Defender, the State O’Neill, the Office of Assistant J. Vernon, Defender, appellee. for of Mt. Appellate opinion FREEMAN delivered JUSTICE court: by appeal is whether single presented issue appeal allowed on diem may per
a defendant be credit, sentencing, monetary prior for incarceration 110—14 of the Code of Criminal provided under section 1994)). (West (725 We ILCS Procedure of 1963 5/110 —14 appeal. may be allowed on hold that the credit
BACKGROUND
defendant,
24, 1993,
Robert Louis Wood-
On October
ard,
along
chase
an interstate
high-speed
on a
police
led
pay
a failure to
following
truck
pickup
in his
highway
defen-
police
After
took
at a service station.
gasoline
in his shirt
they discovered cocaine
custody,
dant
into
a
officer.
spat
police
also
pocket. Defendant
26, 1994,
by
was convicted
January
On
battery and unlawful
County jury
aggravated
Pulaski
ILCS
substance. 720
possession of
controlled
5/12—
1992).
(West
17, 1994, defen-
4(b)(6),
On March
570/402
three
terms of
prison
to concurrent
dant was sentenced
year
drug
for the
battery and one
aggravated
years for
fees and costs
pay
was also ordered to
Defendant
offense.
applied by
A credit was
fine.
and was assessed
$500
imprison-
reducing
period
defendant’s
the trial court
days he served in
the number of
days,
ment
request,
did not
sentencing. Defendant
custody prior to
order,
credit for
that a
diem
did not
and the court
pursuant
section
sentencing,
custody prior
time
fine. 725 ILCS
his
against
applied
$500
*4
1994).
(West
5/110 —14
claimed,
alia,
that he
On
inter
appeal,
credit allowed under sec
was entitled to the
diem
The State maintained that defendant had
tion 110—14.
by
appel
for it. The
failing
waived the credit
that,
elimination of the clerk
despite
late court noted
section 110—14
requirement
notification
from
the record indicated
nothing
amendment
within
the credit at the
that defendant had been notified of
level. 276 Ill.
3d 242. The court declined to
App.
Toolate,
(1995),
274 Ill.
3d 408
App.
follow
which held that
the issue of
section 110—14 credit
failure
appeal
was waived on
based on
defendant’s
sentencing
raise the issue in the trial
at
or in a
court
Hillsman,
post-trial
motion. See also
it
Reasoning
was "inher
ently
keep
unfair” to make defendant
records of the
incarcerated,
expressed
time he was
the court also
waived,
hesitancy
statutory right
to hold that a
had been
absent an
showing
affirmative
of waiver on the record.
sentence,
The court affirmed defendant’s conviction and
and modified the judgment, pursuant
to section 110—
against
to reflect a
fine
pe
for the
$500
$500
riod of defendant’s
prior
sentencing.
incarceration
We leave to Ill. 2d R. Ap pellant subsequently supplement petition elected to its appellate with its brief pursuant Supreme Court Rule (155 315(g) 315(g)). Ill. 2d R. We now affirm.
SECTION 110—14 Section 110—14 Code of Criminal Procedure originally provided: of 1963
"Any person incarcerated on a who bailable offense supply against does not bail and whom a fine is levied on conviction of such offense shall be allowed a credit of $5 day prior except for each so incarcerated to conviction in no case shall the amount so or allowed credited *5 added.) (Emphasis exceed the amount of the fine.” 1965, 38, par. Stat. ch. Rev. 110—14. legislature 1, 1977, Effective October amended (1) provision phrase "upon application to add of (2) requirement defendant,” and that the circuit give eligible court clerk written notice of the credit to an defendant at the time of his Section 110—14 conviction. provided: thus
"Any person a who incarcerated bailable offense against supply not bail and whom a fine is levied on does conviction of such offense shall be allowed a credit of $5 day upon application the de for each so incarcerated of notify the The clerk the court shall fendant. of writing provision at the time he is in the Act of of However, the amount so al convicted. no case shall (Empha or credited exceed the amount of the fine.” lowed added.) 1977, 38, par. ch. 110—14. sis Ill. Rev. Stat. again January 1994, 1, Effective eliminating language amended section 110—14 concerning retaining language notification, clerk but concerning application of the defendant. Section 110—14 provided: thus
"Any person incarcerated on a bailable offense who supply against a is levied on does not bail and whom fine such offense shall be allowed a credit of $5 conviction of day upon application the de- for each so incarcerated However, in shall the amount so allowed no case fendant. (Emphasis of the fine.” or credited exceed the amount 1994). added.) (West 725 ILCS 5/110 —14 dispute amended Defendant does not that the 1994 governs any consideration of version of section 110—14 merely change of law affects this case. When rights remedy procedure, all of action will or law procedure, regard new without be enforceable under the change they whether accrued before or after such regard whether not the action has law and without or saving instituted, clause as to been unless there is existing litigation. Chicago Maiter v. Board Educa tion, change in law from the statute
It is clear resulting amendment, eliminated which from the 1994 only requirement, af could have clerk notification remedy procedure law. the substantive and not fected or Union, Local No. See Rivard Fighters Fire Chicago (1988) pleading, (procedure embraces Ill. 2d directing legal practice, which are rules evidence and bring parties proceedings into court and course of afterwards). Further, amend the 1994 course of court savings clause. Accord effective without ment became ingly, although the criminal acts we find that instant 26, 1993, version the 1994 amended occurred on October January 26, 1994, the 110—14 in effect on of section governs conviction, consideration date of defendant’s *6 any credit in this case.
ANALYSIS appellate court erred The State claims by awarding credit, case, because sec diem per longer tion 110—14 no requirement includes the clerk notification previously provided the foundation which reviewing appeal a to excuse on defendant’s for courts apply trial for the credit at the level. failure to correctly State claims that the court has elsewhere recognized effect of the 1994 amendment the intended requirement. which eliminated the clerk notification App. See 274 Ill. 3d 408. Toolate, position that, under section The State takes the ap- 1977, must 14, a defendant since amendment 110— ply a level as diem credit at the for precondition statutory right to the credit or else to the only right. Section 110—14 thus confers forfeit the statutory right the credit that cannot limited appeal. recognized The State of course on as matter statutory 14, that the evolution of section contends 110— among provision’s legislative debates, and the inclusion obtaining provisions opportunity for show that the bail always the credit has been limited to the trial level. During period between the 1977 and 1994 amend provision ments, when the included the clerk notifica language, reviewing tion there existed foundation for timely apply courts to excuse a defendant’s failure to at (1979) App. the trial level. People v. 77 Ill. Winkler, 3d 35 (allowing appeal, though credit on defendant failed to apply upon court, for credit conviction in the trial where required by no indication of clerk notification as stat ute). According State, to the with the elimination of the requirement by clerk any 1994, notification amendment in excusing apply basis for a defendant’s failure to the credit at the trial level ceased to exist. The 1994 by legislative amendment, debates, as shown did not af part requiring fect that of section 110—14 that a defen apply precondition dant at the trial level as a to receiv ing the credit. despite
Defendant maintains the 1994 amend eliminating requirement, ment the clerk notification appellate panel correctly here found that defendant’s failure to for the credit in the trial statutory right court did not in a result waiver of the appeal. points Defendant out that other appellate position. decisions have also taken this See (1996); App. Scott, 566-67 People v. Nixon, According defendant, under amended version applying of section a defendant is not limited to *7 only for the diem credit at the trial level. Defendant plain language meaning maintains that the and of sec- legislative tion 110—14 reveals no intent to limit a opportunity seeking defendant’s for the credit to the any legislative level, nor intent that the failure to apply for the credit in the trial court results in forfei- argues ture of the credit. Defendant that the State’s in- terpretation of section 110—14 and the effect of the 1993
443
and incon-
practice
contrary
legislative
amendment
is
Defen-
principles.
statutory construction
with
sistent
consistently
court
appellate
out that the
points
dant
legislature
if the
credit and
find waiver of the
declined to
amending
practice
to discontinue
had intended
such
have included
it would
provision
debates,
Instead,
by legislative
as shown
waiver.
any
110—14
did not affect section
1993 amendment
duty
the circuit clerk of
way other than to relieve
provision.
of the
notify defendants
is to
statutory
construction
rule of
primary
legisla
to the intention of the
give
ascertain and
effect
ture,
begins with the
inquiry appropriately
and
Hare, 119 Ill. 2d
People
the statute.
v.
language of
allows
construction which
There is no rule of
did not mean
legislature
the court to declare that
imports.
Where
plain language
what the
statute
unambiguous,
and
the court
an enactment
is clear
meaning
depart
plain language
from the
not free to
limitations,
exceptions,
it
by reading
of the statute
into
(see
express
did not
or conditions
Center
v.
& Anna Portes Cancer Prevention
George
Solich
Inc.,
(1994);
In re Estate
The express language of section as amended provides eligible that an defendant "shall be al- lowed” a "upon application” diem credit for it. Sec- tion 110—14 is silent concerning any time frame or procedural stage during which such either Furthermore, must or can be made. at no time prior to the 1994 amendment did section 110—14 include such Subsequent amendment, limitation. to the 1977 and amendment, until the 1994 provision provided that notify eligible circuit clerk was to an defendant of the credit "at the time he is convicted.” 725 ILCS (West 1992). during Within section 110—14 5/110 —14 period, the phrase "at the time he is convicted” clearly qualified the clerk notification requirement application language. not the defendant The phrase did appear not even within the same as sentence language pertaining to a application. defendant’s Furthermore, there is no language indication from the of that version of the statute that the clerk notification because was added requirement concomitantly, apply required, were defendants at the trial level. no indica- has carried addition, 110—14 In section evolution, a defen- face, its throughout on its tion credit, aas level for the at the trial must dant *9 credit, or any benefit of receiving precondition times, both all relevant credit. At of the risk forfeiture amend- and 1994 to the 1977 subsequent before that an provided ments, expressly section 110—14 allowed” the credit. “shall be defendant eligible in a statute is use of the word “shall” Generally, a direc mandatory rather than indicating a regarded as one; not, however, an inflexible intent. The rule is tory depending may interpreted permissive, as the statute and the intent of provision upon the context 155, (1982); Davis, 162 v. People drafters. See 556, 82 Ill. 2d 562 Youngbey, enacting when legislature, significant It is 1963, in Procedure article 110 of the Code of Criminal by the administra inequities posed with was concerned See ex rel. Carroll of bail in criminal cases. tion Stat., 38, (1966); 604, Ill. Ann. ch. Frye, 35 Ill. 2d 606 (Smith 1963, at 273-74 art. Committee Comments — 1980) discriminatory requir effect of (referring to Hurd pay premi bond indigents who cannot even ing bail ums). minimize, if possible, sought The article 110. Conse inequities its enactment those concerns, like these section light quently, employ which the word sentencing provisions other (see statutory right to confer “shall” (c) (West 1992)), to con 8—7(b), appear would ILCS 5/5 — incarceration monetary credit for mandatory template offense. sentencing on bailable prior to ap- phrase “upon amendment added The 1977 stating that the sentence the defendant” to plication of the credit "shall be allowed.” The phrase addition of this made clear that a defendant was to be allowed the credit upon his request for it. People v. Emery, 190 Ill. Cf. (1989) (clear purpose of 1977 amendment put was to defendant on notice of credit might so he it). request assuming
Even that a defendant’s application was intended a precondition to the statutory right as. to the credit, section 110—14 remained during silent this pe- riod concerning any time frame procedural or stage for application such Moreover, to occur. language pertaining timely clerk notification subsequently was eliminated amendment, but no change was made language to the concerning application. sum, In section language 110—14’s does not indicate forfeiture of the statutory right to the credit for failure to apply at the trial level. State, however, reasons that if the absence of
an express statement that a defendant is limited to a level means that a defendant is not so *10 limited, may and receive the appeal, credit on then conversely, the absence an express of statement that the credit can be appeal awarded on means that it can- not reject be. We this reasoning.
A liberty court is not at to read limitations exceptions statute, into an unambiguous regardless of how such restrictions are Moreover, characterized. un- like the absence of an express limitation of application level, for the credit to the trial the absence of an express allowance of the appeal credit on necessarily does not operate a negation avenue, as of procedural that without Furthermore, more. it would been unnecessary have here for the to expressly allow the credit on appeal application when for the expressly credit was not limited to the trial level.
The State also asserts that both this court and the frame dur acknowledged the time have court appellate Thus, operate. the credit benefit is meant which ing Hare, 441, 119 Ill. stated the court the of Criminal (1988), 110—14 of Code "[s]ection that credit, to provides be [citation] $5 Procedure ap fine.” The imposed against subsequently applied Smith, pellate stated in court (1994), 261, purposes that "for entry of includes section 'conviction’ much cases. The State reads too into these sentence.” any 110—14 not indicate that credit was Section did a fine. imposition Sec necessarily awarded before on a provided persons 110—14 incarcerated tion whom a fine is levied on "against bailable offense and a credit.” Ill. of such offense shall allowed conviction recognized par. Stat. ch. 110—14. As was Rev. Smith, assumption, an appears Hare to reflect underlying facts, perhaps because of its credit only for to trial. given periods prior was of incarceration Moreover, Hare was concerned with issues other than rely cannot presented Consequently, those here. one single authority Hare’s statement of dictum as that sec contemplates operation only tion 110—14 of the at the trial level. Smith,
In
court
the term
appellate
interpreted
include,
within
110—14 to
along
"conviction”
section
judgment,
entry
of the sentence. The inter-
with
pretation sought
period
address whether
after trial could be credited
defendant’s incarceration
a fine. The
address
against
interpretation
did not
period during
sought.
which the credit could be
Hare
authority
thus do
for the inter-
represent
and Smith
not
by the State.
pretation
urged
of section 110—14
here
whole,
plain language
as a
of section
Viewed
110—14 and its amendments indicates the benefit
*11
who
for it at the
persons
credit is not limited to
Hare,
trial
level.
We with defendant provided expressly procedural time limitation periods (West when it so intends. See 725 ILCS 5/122 —1 1994) (post-conviction, generally, must be filed within three years conviction); from date of 725 ILCS 5/116— 1(b) (West 1994) (written motion for new trial must be filed within days from entry of judgment); 730 ILCS 8—1(c) (West 1994) (a timely motion to reduce 5/5 — sentence must be filed days within 30 after sentence 2(a) (West 1994) (written imposed); 725 ILCS mo 5/116 — tion for judgment arrest of must be days filed within 30 5(a) (West from entry judgment); 725 ILCS 5/114 — 1994) (motion for judge substitution may be made call). days within 10 placed after cause judge’s Also, the legislature typically utilizes less oblique means when it intends that a forfeiture of rights claims or oc (West 8—1(c) 1994) (defen See, e.g., curs. ILCS 5/5 — dant waives right challenge correctness of sentence or other aspects of sentencing hearing if claim not included written motion to reduce sentence within 30
449 6(a) 1994) (West (objections days); to 720 ILCS 5/1 — place improper made are unless before of trial waived trial). ambigu- acknowledges absent some
The that State normally discerning legislative ity, is intent the task of reading language. plain State, limited a statute’s to nevertheless, 1977 and 1994 amend- maintains the change represented a material ments to section 110—14 change law, a allows for our consider- and that such of surrounding legislative those debates ation of the amendments. change language
Generally an in the material change presumption unambiguous aof statute creates a by legal although rights, evidence it can be rebutted contrary legislative intent. See State Illinois (1990); at 252 119 Ill. 2d Hare, 138 Mikusch, right being is added 450-51.To determine whether original provision act, from the or whether the or taken merely surrounding being interpreted, is circumstances Singer, 1A N. the must be considered. See enactment Statutory 22.30, § at 267 Sutherland on (5th Construction 1993); see 81 ed. also O’Connor Enterprises, v. A&P (1980). circumstances the 271 If indicate that Ill. legislature original interpret act, the the intended to change presumption O’Connor, will be rebutted. Ill. 2d at 271.
Here,
amendment
the State asserts that
existing precondition
that defendants must
clarified
apply
they
the trial level
receive
for the credit at
before
argue credit. Defendant does not
benefit
scope
as he
and effect of the 1977 amendment inasmuch
by
claimed
the State
contends that
time limitation
not
exist
the statute or
been shown to
face of
party
Thus,
that the
its amendments.
neither
contends
changed
such,
As
no
is
the law.
issue
1977 amendment
joined concerning
is a
1977 amendment
whether the
change
merely
substantive
or
law
clarification of
existing
normally
law which
would necessitate consider
legislative
surrounding
ation of the
debates
the amend
Hospital,
ment.
Varelis v. Northwestern Memorial
Cf.
(1995) (referring
parties’ op
167 Ill. 2d
(same).
positional positions);Mikusch,
The State claims that the debates sur- rounding explaining amendment, the 1977 notifica- the requirement, only op- tion portunity indicate that a limited seeking at credit,
existed the trial level for the advantage op- and that the failure to take of that portunity in resulted forfeiture of the credit. The State maintains that the show debates an intent to link the requirement applica- clerk notification with defendant tion to ensure that defendants for the credit at thereby forfeiting the trial level and avoid Based it. linkage, argues the State elsewhere its brief that phrase implied “at the time of conviction” must be modify language concerning to allowance of the credit “upon application According defendant.” way” State, the also “in debates indicate some that even language added, before the was contemplated “opportunity” section 110—14 that the for the credit would be forfeited unless the credit was applied view, for In at the trial the ad- level. State’s in 1977 made requirement notification of the clerk dition was available the credit opportunity no for plain that proceedings. trial level subsequent State’s belies the legislative debates A review of Rep- Representatives, In the Illinois House assertions. resentative Greiman remarked: system is that happening now because of
"What’s A man will serve they’re giving for time served. not credit out, imposed get a days fine then be let then two or three that he is about this law later. He doesn’t know a month it, ... checking on the clerk doesn’t Nobody is entitled to. up it and he ends think about so in the courtroom doesn’t not ***therefore, servedf;] we getting the time credit for give a form to ... to the clerk of the court to make want advise that defendant rights, he it and that has his turn sit out he the time that has defendant then to against get appropriate that will served. So he Assem., Proceedings, House June fine.” 90th Ill. Gen. Greiman). (statements Representative at 108 Senate, Carroll stated: In the Senator given "This bill deals with the five dollar credit to major crimes. other than for certain people incarcerated are of them not aware problem been most county capable nor is for the clerks provisions of this it counties circuit courts of the various or the clerks it stands for provisions of the bill as now to enforce the bail, always trial who is on they don’t know at the time of provide change in that the cetera. So this is a et writing notify then he defendant in clerk shall writing for the application based on that will then make *14 brought by day was to us the dollar a credit. This five attempt they feel be an to court clerks in what will circuit meaning the that has been on expedite of law better the Assem., Proceedings, Senate books ***.”80th Ill. Gen. the Carroll). (statements 23, 1977, May at 47-48 of Senator by indicate a concern the commentary This does not agree of the credit. We legal with forfeiture legisla- commentary reveals the with State that the the taking not advan- that were ture’s concern defendants credit, for and that tage an to opportunity apply the clerk requirement notification was intended to prompt defendants do agree, however, to so. We do not the commentary that the legislature indicates consid- ered this a legally opportunity to be limited to or apply, that defendants suffered a legal forfeiture of the right to by taking the credit not advantage any practical op- portunity it. commentary The in way no speaks any legal to the issue of inability of defendants through to receive credit appeal. an Both parties acknowledge legisla- that ture did change not intend the aspect of section pertaining 110 —14 application to defendant by the elimination clerk notification requirement. maintains, however, State that the 1994 amendment left statutory as a precondi- intact tion. The State the legislature insists intended that precluded on appeal. legislative The 1994 debates reveal no such intent.
Essentially, Representative confirmed, Lang when Wennlund, questioned Representative deleting amendment requirement the clerk notification merely duty notify "relieves” circuit clerk of the Assem., 88th Ill. defendants. See Gen. House Proceed (statements 20, 1993, ings, April at 17 Representa Lang). tives Wennlund sup These comments do not port position the State’s in the least. additionally
The State placement claims that of sec- among provisions tion 110 —14 bail found sections through 110 —11 110 —18 of Code of Proce- Criminal (725 through dure ILCS 110 —18 5/110 —11 (West 1992)), proceed- which the State claims concern ings leading to trial and for which up appellate review an expressly provided, preclude is indicates intent appeal. disagree. credit on We apparent grouped It these are provisions together stage during not on the of the procedural basis
453 gen- they applicable, of the the basis but on are which they subject For bail, address. matter, which eral a bail on new instance, concerns 110—11 section 1992)) (West (725 110—16 and section ILCS 5/110—11 absence for defendant’s bond forfeiture addresses bail 1992)). (West (725 Section ILCS at trial 5/110 —16 states, because, it as title its is included here 110—14 "[c]redit on bailable offense.” for incarceration concerns 1992). (West provi- Also, bail the ILCS 5/110—14 providing appel- specifically as the State cites sions involving judicial discretion matters late review concern 1992)). (West (see 5, 14, 110—6 725 ILCS 110— 5/110— statutory right credit found section diem language, by 14, of a manda- its is in nature subject by tory right Thus, a defendant. to assertion judicial allow discretion not involved a decision to the credit.
Citing emanating Winkler, cases, from a line appellate nevertheless, has State, correctly recognized court asserts that legislative intent in section (see, appeal preclude e.g., 110—14 the credit on (1994); People App. Stahr, (1992)). Childs, 922-23 When by eliminating legislature amended statute in presumably requirement, it was the clerk notification relying reviewing had on aware that courts been precondition, and foundation to excuse the failure by the of that foundation was intended the elimination legislature precluded on indicate that the credit was appeal. generally on these same cases
Defendant relies consistently appellate declined that the court assert appeal. of a section 110—14 credit to find “waiver” argues amended when the Defendant presumably aware of this 1994, it was statute in judicial practice legislature intended that had the practice discontinued, it would have included provision express period
within the an limitation operate implicitly right would to waive unasserted to a credit. The failure to include such limitation legislature. means it that was not intended *16 recognizing Winkler the seminal case the credit appeal during period on between the 1977 and 1994 although that, amendments. Winkler found the defen apply upon dant to "failed for the credit conviction in court,” he would not be denied the credit where by there nowas indication that he been had notified writing pursuant circuit clerk in of the credit to section judgment 110—14. The Winkler court modified the to days reflect a diem credit of for the four $20 de spent jail. App. Winkler, fendant had 77 Ill. at3d 36- 37. period subsequent
Decisions within this and approaches. to Win employed slightly kler different Several de acknowledged cisions, Winkler, similar to the defen apply previously dant’s failure credit, for the but consistently appeal allowed the credit on based on the lack of indication that the circuit clerk notified the People Roby, defendant of section 110—14. See v. 169 Ill. (1988)(failure App. timely applica 187, 3d 193 to make preclude appeal); People not tion does credit on v. (1987); App. People Johnston, 536, 160 Ill. 3d 544 v. (1986); App. People Bratcher, 425, 149 Ill. 3d 430 v. (1985); App. People Young, Smith, 133 Ill. 3d 613 v. 96 App. implied 634, Ill. 3d 636 These decisions a defendant’s at trial level was somehow requisite they explain credit, to the but did not whether application preconditioned right such or constituted merely right’s evidence assertion. Unlike Win express kler, these decisions did not that defendants required apply upon were for the credit conviction in the trial court.
455 period discussed during this same Other decisions the trial credit at apply failure defendant’s consistently analysis, but of waiver level in terms showing was no there waiver because declined to find required as were informed the defendants Winkler, did not these decisions Again, unlike statute. for the required apply that defendants were express People v. the trial court. upon conviction (1992); 915, v. Sin People 3d 922-23 Childs, App. 226 Ill. (1992) (no 923, waiver of issue nott, 3d 935 App. 226 Ill. or in argument at trial present for failure to of credit that clerk in no indication post-trial motion where entitlement); People v. see also formed defendant (1994) (though did Stahr, App. Ill. 3d 624 court, in trial "issue” not waived not for credit (1993) Plante, App. 3d 472 appeal); People v. (1993); (same); Jenkins, App. 3d People v. 251 Ill. (1992); 922-23 People App. 232 Ill. Tippett, (1990); Laster, *17 467, (1980); Brown, 471 v. Taylor, App. People v. 84 Ill. 3d (1980); Mills, 261, App. 83 Ill. 3d 262 see also (1993) to App. (parties’ stipulation 239 Ill. 3d 999 not fine and costs without mention of credits did consti credits). statutory tute of waiver the extent agrees The State with these decisions to at trial they the level that view disagrees, The as the credit. State requisite somehow to however, to for the apply a defendant’s failure that waiver; simply the level a matter of credit at trial is at forfeits apply for the credit the level failure to the to credit. right the reading of section we plain
Based on a incorrectly. interpreted section 110—14 believe Winkler during period 110—14 be- plain reading A of section 1994 does not indicate that defendants tween 1977 and upon the credit their convic- required apply were 456
tian the trial pertained only court. That limitation obligations. the circuit clerks’ The decisions which followed Winkler subsequently making avoided statement, express they are inconsistent and some- equivocal what in their treatment of defendants’ failures under the statute. We believe the in- incorrect terpretation section 110— 14 Winkler contributed by judicial to the inconsistency and uncertainty in this area. subsequent
Decisions to the 1994 amendment are in agreement not regarding legislature’s the effect of the elimination of the clerk notification requirement. Toolate, State recommends which found that elimination the clerk requirement notification al lowed for application of "normal rules” of waiver Toolate, appeal. an issue on App. See 274 3d 409. Ill. at Toolate of a held issue section 110— 14 was waived for purposes appeal because the defendant failed to sentencing raise issue the trial court at Hillsman, or in a post-trial motion. Accord People v. App. Ill. agreeing While not waiver analysis appropriate, was the State contends Toolate correctly understood intended preclude with 1994 amendment credit on appeal. The State cites to no decision that entirely its supports following view section 110— 14 amendment. decisions, post-1994
Two by other relied on defen dant, disagreed with approach have taken Toolate, and instead viewed section 110— 14 as confer ring statutory right despite clear which not waived any failure to raise the "issue” at the trial See level. Scott, 566; Nixon, App. 3d at at *18 Scott The court to that expressed 460. its reluctance find right that to the credit had been waived and stated "[gjranting is a act that simple the credit ministerial by ending any further judicial economy promote will Scott, at App. Ill. over the matter.” proceedings 566. is in Scott and Nixon approach taken
We believe plain a read previously, based on correct. As discussed before the of section both ing language 110— it, statutory to subsequent and 1994 amendment mandatory diem credit is conferred right to a being subject application. to a defendant’s terms while (see such, "normal rules” waiver do not As 409), Toolate, right cogni at and the App. 274 Ill. subject of course appeal zable on as matter legislative The for it. application defendant’s that the elimination the clerk notifica debates show of section aspect tion did not affect requirement clear, by did make 110—14. 1994 amendment requirement eliminating the clerk notification and its terms, for that a defendant’s the credit was the terms of the prior- not intended to conditioned requirement, included clerk notification statutory right the credit is not intended defendant’s clerk, turn, review, by the purposes on notice compliance not. whether in with the statute or 8—7(b) Notably, mandatory in section credit similarly. treated See Unified Code been (1992) Sizemore, (compar 226 Ill. 3d 956 People App. v. 8—7(b) ing credit raised on to treat appeal section 5 — ment under same circum of section 110—14 credit (1992) stances); Donnelly, 3d 771 App. v. (because credit, statutory right regarding error court); credit for failure to raise in trial not waived (1990) Beech, (emphasizing App. 202 Ill. 3d 576 appeal); People could have been raised on (1989) (credit Bates, could have been 3d 705 raised appeal). on
CONCLUSION may appeal We that a be allowed hold *19 diem credit a per pursuant to section 110— 14 for prior incarceration to sentencing. judgment The court, appellate the trial modifying judgment court’s conviction, is affirmed. court
Appellate judgment affirmed. MILLER, JUSTICE dissenting: I do not agree majority’s with the conclusion that diem monetary against the credit allowed fines section Criminal 110— 14 the Code of Procedure of (725 (West 1994)) may ILCS 5/110 — 14 obtained appeal on though even a defendant not applied first for my view, the credit in the circuit court. In such a court, request must be made in the trial or is else it lost. majority’s The interpretation of section 110—14 is contrary plain to both the language legislative and the history of that The provision. ap- version the statute plicable January 1, 1994; to this case took effect it provides:
"Any person incarcerated on bailable offense who against supply bail does not and whom fine is levied on conviction such shall offense be allowed a credit of $5 day upon for each so incarcerated of the de- However, fendant. in shall no case the amount so allowed or credited exceed the amount of the fine.” 725 ILCS (West 1994). 5/110 —14
The majority believes that defendant who fails to request the in may credit the circuit court wait until appeal the cause on to seek the same relief from the reviewing I with disagree majority court. and would instead that a statutory conclude forfeits the entitlement if he does not for it the circuit Hillsman, (1996) App. court. See 3d 895 Toolate, waiver); (finding 3d 408 (1995) (same). my view, phrase "upon application In defen plainly contemplates of the defendant” will while case is request dant credit his before legislature I do believe that judge, not could be raised the matter of intended that review, prior regard without for the first time imposed. in which the fine was request it in the court provides proof 110—14 further history of section for the credit to be intended appropriate not make an if the defendant did forfeited 110—14 circuit Before section request in the court. requiring circuit contained an additional sentence "notify writing court the defendant clerk Act time he is convicted.” 725 provision of the at the *20 (West 1992). ILCS Under that version of the 5/110 —14 statute, notes, appellate majority opinion as the excuse a failure to raise the court would defendant’s in the court if the record did not issue circuit provided show that the circuit court clerk had the nec See, Stahr, essary v. Ill. 3d e.g., People App. notice. 255 624, (1994); Childs, 915, App. People 627 v. 226 Ill. 3d (1992); 187, 922-23 3d 193 People Roby, App. v. (1979). (1988); Winkler, 35, 77 Ill. course, suggest, procedural Those decisions that default of the credit issue would have been conse quence of the defendant’s failure to seek the credit provided the trial if the had the necessary court clerk or, alternatively, required notice if the had not statute given that notice be at all. We must assume that 14, legislature, when it later amended section 110— the appellate longstanding was aware of court’s inter Hickman, pretation of the statute. See By eliminating requirement that notice, legislature the clerk thus removed provide ground on which defendants’ default of the very customarily credit issue was excused. 14, I history
Given the text of section would intended limit conclude availability credit authorized per diem
provision to defendants who for it in the circuit court.
(No. 80665. MOTORS, INC., Appellee, MARKETVIEW v. COLO- NIAL INSURANCE COMPANY OF CALIFOR- NIA, Appellant.
Opinion February Rehearing denied filed 1997. March 1997. *21 HARRISON, J., dissenting.