People v. Chester

FILED
January 28, 2014
2014 IL App (4th) 120564 Carla Bender
4th District Appellate
NO. 4-12-0564 Court, IL

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) McLean County
GREGORY CHESTER, ) No. 07CF1069
Defendant-Appellant. )
) Honorable
) Robert L. Freitag,
) Judge Presiding.
______________________________________________________________________________

JUSTICE KNECHT delivered the judgment of the court, with opinion.
Presiding Justice Appleton and Justice Harris concurred in the judgment and
opinion.
OPINION

¶1 On March 22, 2012, defendant, Gregory J. Chester, filed a pro se petition under the

Post-Conviction Hearing Act (Postconviction Act) (725 ILCS 5/122-1 through 122-8 (West

2012)). Four days later, defendant moved to stay the postconviction proceedings to allow him

time to add additional unspecified constitutional arguments he recently found. In his motion,

defendant referenced section 122-5 of the Postconviction Act (725 ILCS 5/122-5 (West 2012)) and

stated the trial court had the authority to allow petitioners to withdraw their petitions. In June

2012, the trial court dismissed defendant's petition, finding it frivolous and patently without merit.

Defendant appeals, arguing (1) he had a right to withdraw his postconviction petition without

prejudice during the first stage of postconviction proceedings; (2) the trial court abused its

discretion by failing to rule on defendant's motion to stay before denying the postconviction

petition; and (3) he is entitled to monetary credit against the Children's Advocacy Center fee and
drug court fee due to the time he spent in jail awaiting sentencing. We disagree with defendant's

first and second arguments, vacate the fines referenced in his third argument as assessed by the

circuit clerk, and remand with directions that the trial court impose mandatory fines and credit

creditable fines as appropriate.

¶2 I. BACKGROUND

¶3 In July 2008, defendant was convicted of aggravated battery (McLean County case

No. 07-CF-1069) and obstructing justice and resisting arrest (McLean County case No.

07-CF-797). The victim of aggravated battery was a Bloomington police officer who was driving

a marked squad car and wearing his uniform at the time of the offense, October 6, 2007. People v.

Chester, 409 Ill. App. 3d 442, 444, 949 N.E.2d 1111, 1113-14 (2011). The officer was in pursuit

of the fleeing defendant when defendant battered him. See Chester, 409 Ill. App. 3d at 444, 949

N.E.2d at 1113-14. In October 2008, the trial court sentenced defendant to 12 years'

imprisonment for aggravated battery, to be served consecutively to the 5-year term he received for

obstructing justice and 364 days for resisting arrest. On direct appeal, defendant argued the State

improperly commented during closing argument on his right not to testify and the trial court

improperly failed to question jurors during voir dire pursuant to Illinois Supreme Court Rule

431(b) (eff. May 1, 2007). This court affirmed defendant's conviction and sentence. Chester,

409 Ill. App. 3d at 443-44, 949 N.E.2d at 1113.

¶4 On March 22, 2012, defendant filed his pro se petition for postconviction relief.

He argued his constitutional rights were violated because, in part, (1) the police officer failed to

provide evidence of a traffic violation and made a false statement in court; (2) the State, at trial,

failed to prove "anything was broken or fracture[d]"; (3) a juror was familiar with a witness in the

case and did not affirmatively state she could remain impartial; (4) another juror knew the trial

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judge; (5) the trial court failed to comply with Illinois Supreme Court Rule 431(b) (eff. May 1,

2007); and (6) the State improperly commented, during closing argument, on his right not to

testify.

¶5 On March 26, 2012, before the trial court ruled on his petition, defendant filed a

"Motion to Stay Post-Conviction." In his motion, defendant asked the court to "stay the original

post-conviction or grant him an extension of time for at least 30 to 45 days." Defendant asserted

the court was authorized to suspend his petition and stated the court could "allow a defendant to

withdraw an initial post-conviction petition" and he could "refile *** and have it treated as the

original." Defendant asserted, due to his limited library access, he "just found several constitu-

tional violations" and needed time to place those arguments in his original petition.

¶6 On June 1, 2012, the trial court dismissed defendant's petition as frivolous and

patently without merit. The court concluded defendant's first four allegations of error were

forfeited as they could have been raised on direct appeal but were not. The court found the latter

two allegations of error were raised on direct appeal and relitigation of those issues was barred by

res judicata. The court did not explicitly address defendant's motion to stay.

¶7 This appeal followed.

¶8 II. ANALYSIS

¶9 A. Defendant Did Not Have the Right To Withdraw His Postconviction Petition

¶ 10 Defendant argues, under section 2-1009(a) of the Code of Civil Procedure

(Procedure Code) (735 ILCS 5/2-1009(a) (West 2012)) he had the absolute right to withdraw his

postconviction petition. Defendant maintains the language in section 122-5 of the Postconviction

Act, stating "[t]he court may in its discretion grant leave, at any stage of the proceeding prior to

entry of judgment, to withdraw the petition" (emphasis added) (725 ILCS 5/122-5 (West 2012)),

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does not conflict with section 2-1009(a) in these circumstances. Defendant contends the quoted

language from section 122-5 applies only after a trial court finds the petition not frivolous and

patently without merit and then dockets the petition under section 122-2.1(b) "for further

consideration in accordance with Sections 122-4 through 122-6" (725 ILCS 5/122-2.1(b) (West

2012)). Until that point, defendant urges, section 122-5's limiting language does not apply and,

because the trial court had not dismissed or docketed his petition under section 122-2.1(b), he was

entitled to voluntarily withdraw his petition under section 2-1009(a).

¶ 11 The State disputes defendant's contention the trial court should have treated

defendant's "Motion to Stay Post-Conviction" as a motion to withdraw. The State points out

defendant did not seek to withdraw his petition but instead sought a delay in the proceedings.

Defendant counters he referenced the trial court's authority to grant a withdrawal in his pro se

motion and contends the court should have treated it as such given his right to withdraw the

petition before it was ruled upon. Whether defendant's motion should have been treated as a

motion to withdraw or a motion to stay proceedings does not matter. We find defendant had no

right to withdraw his postconviction petition absent court approval.

¶ 12 This issue presents a matter of statutory construction. Our main goal when

construing a statute is to give effect to the legislature's intent. People v. Glisson, 202 Ill. 2d 499,

504, 782 N.E.2d 251, 255 (2002). We endeavor to apply the plain and ordinary meaning of the

language of the statute. Id. When a statute is unambiguous, we may not add limitations,

exceptions, or other conditions into the statute's provisions. Id. at 505, 782 N.E.2d at 255. This

court should not read phrases in isolation, but must evaluate a statutory provision as a whole. Id.

¶ 13 Section 2-1009(a) of the Procedure Code authorizes, in civil cases, the voluntary

withdrawal of an action. It provides the following: "The plaintiff may, at any time before trial or

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hearing begins, upon notice to each party who has appeared or each such party's attorney, and upon

payment of costs, dismiss his or her action or any part thereof as to any defendant, without

prejudice ***." 735 ILCS 5/2-1009(a) (West 2012).

¶ 14 While "postconviction proceedings are civil in nature" (People v. English, 2013 IL

112890, & 14, 987 N.E.2d 371), proceedings under the Postconviction Act are sui generis.

People ex rel. Daley v. Fitzgerald, 123 Ill. 2d 175, 181, 526 N.E.2d 131, 134 (1988). Provisions

of the Procedure Code may be applied to postconviction actions, so long as they do not conflict

with provisions of the Postconviction Act. People v. English, 381 Ill. App. 3d 906, 909-10, 885

N.E.2d 1214, 1217 (2008); see also 725 ILCS 5/122-5 (West 2012) ("The court may in its

discretion make such order as to amendment of the petition or any other pleading, or as to pleading

over, or filing further pleadings, or extending the time of filing any pleading other than the original

petition, as shall be appropriate, just and reasonable and as is generally provided in civil cases."

(Emphasis added.)).

¶ 15 The Postconviction Act offers "a remedy whereby defendants may challenge their

convictions or sentences for violations of federal or state constitutional law." People v. Coleman,

206 Ill. 2d 261, 277, 794 N.E.2d 275, 286 (2002). It establishes a three-stage process by which a

defendant may attain review of a claim his conviction led to a substantial denial of his constitu-

tional rights. People v. Dopson, 2011 IL App (4th) 100014, & 17, 958 N.E.2d 367 (2011). In

the first stage, a trial court considers whether the postconviction petition is frivolous or patently

without merit. People v. Andrews, 403 Ill. App. 3d 654, 658-59, 936 N.E.2d 648, 652 (2010).

Any petition deemed frivolous and patently without merit must be dismissed. 725 ILCS

5/122-2.1(a)(2) (West 2008). If the postconviction petition survives the first-stage review, it is

docketed "for further consideration in accordance with Sections 122-4 through 122-6" (725 ILCS

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5/122-2.1(b) (West 2012)). At this stage, the second stage, counsel is appointed and the pro

se petition may be amended. Andrews, 403 Ill. App. 3d at 658, 936 N.E.2d at 653. In addition,

the State may answer the petition or seek its dismissal. 725 ILCS 5/122-5 (West 2012). The

proceedings advance to the third stage if the State answers the postconviction petition or the court

denies the State's motion to dismiss. At the third stage, the postconviction petitioner may submit

evidence supporting his claim. Andrews, 403 Ill. App. 3d at 658-59, 936 N.E.2d at 653; 725 ILCS

5/122-6 (West 2012).

¶ 16 Section 122-5 of the Postconviction Act addresses the issue of when a

postconviction petition may be withdrawn or modified (725 ILCS 5/122-5 (West 2012)). It states

the following:

"Proceedings on petition. Within 30 days after the making of an

order pursuant to subsection (b) of Section 122-2.1, or within such

further time as the court may set, the State shall answer or move to

dismiss. In the event that a motion to dismiss is filed and denied,

the State must file an answer within 20 days after such denial. No

other or further pleadings shall be filed except as the court may

order on its own motion or on that of either party. The court may

in its discretion grant leave, at any stage of the proceeding prior to

entry of judgment, to withdraw the petition. The court may in its

discretion make such order as to amendment of the petition or any

other pleading, or as to pleading over, or filing further pleadings,

or extending the time of filing any pleading other than the original

petition, as shall be appropriate, just and reasonable and as is

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 generally provided in civil cases." (Emphasis added.) 725 ILCS

5/122-5 (West 2012)

¶ 17 Section 2-1009(a) of the Procedure Code and section 122-5 of the Postconviction

Act treat withdrawals differently. While section 2-1009(a) allows plaintiffs the right to

withdraw a complaint without court approval (735 ILCS 5/2-1009(a) (West 2012)), section

122-5 requires court approval before a petition may be withdrawn.

¶ 18 This presents the question of which section applies to defendant's petition. As

stated above, defendant believes section 122-2.1(b) of the Postconviction Act (725 ILCS

5/122-2.1(b) (West 2012)) answers the question. Under section 122-2.1(a), a trial court must rule

on a postconviction petition within 90 days on the issue of whether the petition is frivolous or

patently without merit. 725 ILCS 5/122-2.1(a)(2) (West 2012). Under section 122-2.1(b), if a

court finds the petition not frivolous and patently without merit, the petition is "to be docketed for

further consideration in accordance with Sections 122-4 through 122-6." 725 ILCS 5/122-2.1(b)

(West 2012). Defendant interprets this language to mean sections 122-4 through 122-6, which

includes section 122-5's withdrawal language, apply only after a postconviction petition advances

to the second stage. Defendant further points to the language of section 122-5 itself, which begins

with reference to an order made pursuant to section 122-2.1(b). 725 ILCS 5/122-5 (West 2012).

Defendant emphasizes the absence of paragraph breaks in section 122-5 shows the legislature's

intent the entire section applies once the second stage of postconviction proceedings are triggered

by an order pursuant to section 122-2.1(b). Because, defendant argues, his request to withdraw

occurred during the first stage of proceedings, section 122-5 does not apply and the Procedure

Code's section 2-1009(a) does.

¶ 19 In contrast, the State contends the plain language of section 122-5 shows it applies

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to petitions in the first stage of postconviction proceedings. The State emphasizes the language

within section 122-5 that a motion to withdraw may be granted "at any stage of the proceeding

prior to entry of judgment." 725 ILCS 5/122-5 (West 2012).

¶ 20 While no published decision addresses the exact issue here, the Supreme Court of

Illinois, as defendant acknowledges, concluded section 122-5 applies to first-stage dismissals.

See People v. Harris, 224 Ill. 2d 115, 131, 862 N.E.2d 960, 970 (2007). This conclusion stems

from an analysis of the justices' majority and dissenting opinions in People v. Watson, 187 Ill. 2d

448, 719 N.E.2d 719 (1999). In Watson, the court considered the issue of whether an amended

postconviction petition restarted the 90-day period in which a trial court must consider whether a

petition is frivolous or patently without merit. Id. at 450, 719 N.E.2d at 719. The majority ruled

that it did without addressing the question of whether an original postconviction petition could be

amended before it advanced to the second stage. Id. In a dissenting opinion, joined by no other

justices, Justice Rathje stated the issue resolved by the majority should not have been addressed

because the Postconviction "Act does not allow amended petitions at the initial stage of

post-conviction proceedings." Id. at 456, 719 N.E.2d at 723 (Rathje, J., dissenting). Justice

Rathje then set forth the same argument asserted by defendant here. Id. at 457, 719 N.E.2d at 723

(Rathje, J., dissenting).

¶ 21 In Harris, the unanimous court determined "the question of whether section 122-5

applies at the first stage was settled by Watson." Harris, 224 Ill. 2d at 131, 862 N.E.2d at 970.

Before making this finding, the Harris court noted Justice Rathje's dissenting opinion in Watson,

as well as the fact that no other justice joined in the dissent. Id. The court then followed up with

another sentence showing its decision a trial court has discretion to allow a petition to be

withdrawn at the first stage of postconviction proceedings: "We do not believe, however, that,

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simply because the trial court has the discretion at the first stage to allow amendments to the

petition, or to allow the petition to be withdrawn, or to allow the defendant to plead over, the trial

court necessarily abuses that discretion by failing to dismiss the petition without prejudice when a

direct appeal is pending." Id.

¶ 22 Given the Illinois Supreme Court's decision in Harris finding the applicability of

section 122-5 to the first stage "settled," we conclude defendant did not have an absolute right to

withdraw his postconviction petition under section 2-1009(a) of the Procedure Code. Section

122-5 of the Postconviction Act applied to defendant's request.

¶ 23 B. The Trial Court Did Not Abuse Its Discretion

¶ 24 Defendant argues the trial court abused its discretion when it did not rule upon his

motion. Defendant contends had the court denied his motion it would have been an abuse of

discretion. He maintains, had he been given more time, he could have amended his

postconviction claim the police officer lied in court by attaching affidavits, additional facts, or

other proof.

¶ 25 We find the trial court did not err in not explicitly ruling on defendant's motion.

The Harris decision is instructive. In Harris, a postconviction petitioner argued the circuit court

erred by not expressly ruling on the requests in his prayer for relief, which included a request for

additional "time and leave to amend and/or supplement the petition." Harris, 224 Ill. 2d at

138-39, 862 N.E.2d at 974-75. The Harris court concluded the circuit court, when it entered the

"final order summarily dismissing the petition as frivolous and patently without merit ***

impliedly denied the requests in defendant's prayer for relief." Harris, 224 Ill. 2d at 139, 862

N.E.2d at 975. The final order in this case that summarily dismissed defendant's petition as

frivolous and patently without merit implicitly denied defendant's request for a stay or withdrawal.

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See Harris, 224 Ill. 2d at 139, 862 N.E.2d at 975.

¶ 26 The question, as in Harris, is whether the trial court abused its discretion to deny

defendant's request for a stay or withdrawal. See Harris, 224 Ill. 2d at 139-40, 862 N.E.2d at 975.

We find no abuse of discretion. Contrary to the arguments in his brief, defendant did not in his

motion seek time to develop or find support for the arguments already contained in his

postconviction petition. Instead, defendant requested time "to add additional arguments of a

constitutional nature." He stated, due to his limited access to the library, he "ha[d] just found

several constitutional violations." Defendant failed to list these allegedly newfound constitu-

tional violations. Defendant had nearly four years to develop the constitutional arguments and

yet made no attempt to describe the violations. The trial court did not abuse its discretion in

denying defendant's request for additional time.

¶ 27 Defendant's cases are distinguishable. Both involve motions to withdraw that

were denied and the denials were affirmed as proper exercises of discretion (see People v.

Anderson, 49 Ill. 2d 534, 537-38, 276 N.E.2d 300, 302 (1971); People v. Kirk, 9 Ill. App. 3d 483,

485, 292 N.E.2d 510, 511 (1972)). Neither case supports the conclusion the trial court erred here.

¶ 28 C. Defendant is Not Entitled to a Credit against His Fines, Which Circuit Clerks Are
Without Authority To Impose

¶ 29 Defendant next argues is entitled to credit for time spent in custody awaiting

sentencing against two fines imposed on him: a "Children's Advocacy Center Fee" (CAC) of $15

and a "Drug Court Fee" of $10. Defendant asserts, according to People v. Butler, 2013 IL App

(5th) 110282, && 3-7, 983 N.E.2d 564, and People v. Sulton, 395 Ill. App. 3d 186, 188-89, 916

N.E.2d 642, 644-45 (2009), these "fees" are fines. Defendant alleges he spent 118 days in

custody awaiting trial and was entitled to a credit of $5 for each day served ($590 in available

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credit), amply offsetting the CAC and drug-court fines. See 725 ILCS 5/110-14(a) (West 2008).

¶ 30 The State concedes defendant is entitled to credit for time spent in presentence

custody against fines imposed on defendant, including the CAC and drug-court fines. The State

argues, however, defendant is not entitled to a credit of $25. According to the State, section

110-7(f) of the Code of Criminal Procedure of 1963 (725 ILCS 5/110-7(f) (West 2008)) directs the

court clerk to retain 10% of the bail amount paid by defendant as bail-bond costs. The State

emphasizes defendant posted $500 in bond, and the clerk of the court failed to assess the $50

mandated by section 110-7(f). According to the State, the $25 defendant seeks should be

allocated to the mandatory bond costs rather than be refunded.

¶ 31 We do not accept the State's concession defendant is entitled to credit for time spent

in presentence custody against the CAC ($15) and drug-court fees ($10). The record before us

affords no indication the trial court imposed any fines orally at sentencing, in its docket entry, by

the written sentencing judgment entered July 18, 2008, or by supplemental sentencing judgment.

Defense counsel asserts by brief defendant was assessed these fines, citing the common-law record

at 123. This citation is to the circuit clerk's "notice to party," listing fines and court costs

purportedly assessed against defendant in this case. The circuit clerk's assessment and notice to

the party, appended, is no substitute for the imposition of fines by the trial judge as part of the

sentence.

¶ 32 This court has consistently held the circuit clerk does not have the power to impose

fines. People v. Swank, 344 Ill. App. 3d 738, 747-48, 800 N.E.2d 864, 871 (2003); People v.

Isaacson, 409 Ill. App. 3d 1079, 1085, 950 N.E.2d 1183, 1189-90 (2011) (trial court expressly

imposed a deoxyribonucleic acid (DNA) fine and a contribution to the Crime Detection Network

and ordered defendant to pay whatever mandatory assessments, including the Violent Crime

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Victims Assistance Fund (VCVA) fine, that were listed by the circuit clerk; the record contained

no evidence the court itself determined the mandatory fines that applied to the defendant's

conviction and the appropriate amounts of those fines; this court held the conditional discharge

order erroneously abdicated that task to the clerk); People v. Alghadi, 2011 IL App (4th) 100012,

& 20, 960 N.E.2d 612 ("any fines imposed by the circuit clerk's office are void from their

inception"); People v. Williams, 2013 IL App (4th) 120313, & 16, 991 N.E.2d 914 ("such actions

by the clerks flagrantly run contrary to the law"). We vacate the circuit clerk's imposition of these

fines and remand to the trial court for reimposition of the mandatory fines. People v. Folks, 406

Ill. App. 3d 300, 305, 943 N.E.2d 1128, 1132 (2010); 55 ILCS 5/5-1101(f-5) (West 2010) (where

authorized by county ordinance, the Child Advocacy Center assessment is mandatory and a fine);

725 ILCS 240/10(b) (West 2010) (VCVA fine is $4 for each $40, or fraction thereof, of fine

imposed); People v. Allen, 371 Ill. App. 3d 279, 285, 868 N.E.2d 297, 302-03 (2006) (vacating

fines improperly imposed by the circuit clerk and remanding for the proper imposition by the trial

court); People v. Rohlfs, 322 Ill. App. 3d 965, 971-72, 752 N.E.2d 499, 503-04 (2001); see also

Williams, 2013 IL App (4th) 120313, 991 N.E.2d 914 (appendix) (referencing, e.g., the court

system fee (55 ILCS 5/5-1101(a) (West 2010)) as a fine, although not creditable). In doing so, we

encourage the trial court to review the reference sheet this court recently provided in Williams,

2013 IL App (4th) 120313, 991 N.E.2d 914 (appendix), to assist trial courts in ensuring the

statutory fines and fees in criminal cases are properly imposed.

¶ 33 We note other reviewing courts have likewise heldCsome over 25 years agoCthe

circuit clerks lack authority to impose fines, which as a matter of law must be imposed by the trial

court as part of the sentence ordered (730 ILCS 5/5-9-1 (West 2012)). See, e.g., People v. Scott,

152 Ill. App. 3d 868, 873, 505 N.E.2d 42, 46 (1987) (Fifth District); People v. Tarbill, 142 Ill. App.

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3d 1060, 1061, 492 N.E.2d 942 (1986) (Third District); People v. Reed, 160 Ill. App. 3d 606, 612,

513 N.E.2d 1193, 1197 (1987) (circuit clerk has no judicial powers and therefore cannot impose an

unassessed VCVA fine as a miscellaneous cost); People v. Wisotzke, 204 Ill. App. 3d 44, 49-50,

561 N.E.2d N.E. 2d 1310, 1313 ( 1990) (Second District, quoting the Illinois Supreme Court in

People v. Hare, 119 Ill. 2d 441, 451-52, 519 N.E.2d 879, 883 (1988), referring to a charge assessed

under section 10 of the VCVA "as a 'fine' which is 'to be imposed by the judge at the same time

other fines and penalties are imposed and are to be collected in the same manner as other fines' ");

People v. Albert, 243 Ill. App. 3d 23, 28, 611 N.E.2d 567, 570 (1993) (Second District) (circuit

clerk lacked authority to impose the police training fee and cause must be remanded for proper

imposition of the fines by the court). These are just some of the published opinions addressing

this subject. See also 1991 Ill. Att'y Gen. Op. No. 91-007 (penalties authorized by statute

authorizing VCVA fines and by section 5-9-1 of Unified Code of Corrections must be imposed by

the trial court; local court rules may not authorize the circuit clerk to impose the penalties as part of

court costs).

¶ 34 Our Illinois Supreme Court has similarly held the circuit clerks are without

authority to impose public defender fees. People v. Gutierrez, 2012 IL 111590, ¶¶ 14 & n.1 ("we

do not believe that the clerk=s action in imposing an illegal fee should further burden the

defendant"), 24 ("The circuit clerk had no authority to impose the public defender fee on its own

***."), 962 N.E.2d 437. The Gutierrez court further stated: "Because defendant=s notice of appeal

properly brought up his entire conviction for review, the appellate court had jurisdiction to act on

void orders of the circuit clerk. See People v. Shaw, 386 Ill. App. 3d 704, 710-11 [, 898 N.E.2d

755, 762] (2008) (just as a void order may be attacked at any time, appellate court could address

forfeited argument that circuit clerk acted beyond its authority in imposing a fine)." Id. ¶ 14, 962

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N.E.2d 437.

¶ 35 The parties before us fail to note these fines were not ordered by the trial court and

simply address defendant's statutory per diem credit. In future cases before this court, attorneys

for the office of the State Appellate Defender and the office of the State's Attorneys Appellate

Prosecutor are reminded to comply with Illinois Supreme Court Rule 341(h)(6) (eff. Feb. 6, 2013)

and provide a statement of facts containing the facts necessary to understand the issues of the case.

In appeals raising statutory credit issues, this requires the parties' briefs to contain a statement of

facts identifying which specific fines the trial court identified and expressly imposed as part of the

sentenceCand which fines the circuit clerk simply assessed after sentencing and without bringing

them to the judge's attention and having the judge sign off on them in a supplemental sentencing

judgmentCand providing appropriate citations to the record. The parties may not agree to

overlook or otherwise ignore the circuit clerk's imposition of fines not ordered by the trial court.

In People v. O'Laughlin, 2012 IL App (4th) 110018, ¶ 28, 979 N.E.2d 1023, this court

acknowledged the voluminous resources expended in trying to determine and assess the myriad

fines and fees our legislature has created. We also stated: "Nevertheless, we are bound to follow

these legislative mandates." Id. The circuit clerks may be the entity with the software to apply to

this situation, and the circuit clerk may need to input the specific sentence imposed to have the

software determine and assess the appropriate fines and fees; and the date of the offense(s) may not

be a required input, leading in some cases to imposition on an ex post facto basis. Complexities

continue to arise because the legislature has required the imposition of more and more fines.

Variables remain that require human analysis. There is no software to answer every question or

make any task automatic. These facts do not change the overarching mandate running throughout

the statutory provisions that sentence must be imposed by the trial judge and this task cannot be

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delegated to the clerk; these matters must be brought back before the sentencing judge and

reviewed and signed by that judge. The trial judge must fulfill that duty with assistance from the

prosecution, the defense, and the circuit clerk. We need the above specificity from the parties to

fulfill our duties on review.

¶ 36 We disagree with the State's argument on applying any such resulting credit to

mandatory bond costs. The notice sent to defendant regarding fine and court costs includes a

"Circuit Clerk Bond Fee" of $50, an amount equal to the 10% required to be assessed under

section 110-7(f). While a citation to "705 ILCS 105/27.1" follows this fee on the notice, the fee

could not have been authorized by that section as it was repealed in 2003. See Pub. Act 93-39,

' 10 (eff. Jul. 1, 2003). It thus appears the $50 "Circuit Clerk Bond Fee," against which defen-

dant's posted bond was applied, satisfies the section 110-7(f) mandate.

¶ 37 We vacate the circuit clerk's assessment of fines and remand with directions to the

trial court to impose mandatory fines and direct credit applied to creditable fines as appropriate.

¶ 38 The cases cited regarding fines and fees repeatedly state the circuit clerk is without

authority to impose fines. The cases seldom refer to the trial judge's abdication of his

responsibility to impose fines as part of the sentencing process. Trial judges have the

responsibility to impose a lawful sentence. The prosecution and defense have a duty to assist

the court in doing so.

¶ 39 III. CONCLUSION

¶ 40 We vacate the circuit clerk's fine assessments and remand to the trial court with

directions; we otherwise affirm. We grant the State its statutory assessment of $50 against

defendant as costs of this appeal.

¶ 41 Affirmed in part and vacated in part; cause remanded.

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 Appendix A
Case No. 4-12-0564