NOTICE: Under Supreme Court Rule 367 a party has 21 days after the
filing of the opinion to request a rehearing. Also, opinions are
subject to modification, correction or withdrawal at anytime prior
to issuance of the mandate by the Clerk of the Court. Therefore,
because the following slip opinion is being made available prior to
the Court's final action in this matter, it cannot be considered
the final decision of the Court. The official copy of the following
opinion will be published by the Supreme Court's Reporter of
Decisions in the Official Reports advance sheets following final
action by the Court.
Docket No. 80374--Agenda 12--September 1996.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. ROBERT LOUIS
WOODARD, Appellee.
Opinion filed February 20, 1997.
JUSTICE FREEMAN delivered the opinion of the court:
The single issue presented by this appeal is whether a
defendant may be allowed on appeal the per diem monetary credit,
for incarceration prior to sentencing, provided under section 110--
14 of the Code of Criminal Procedure of 1963 (725 ILCS 5/110--14
(West 1994)). We hold that the credit may be allowed on appeal.
BACKGROUND
On October 24, 1993, defendant, Robert Louis Woodard, led
police on a high-speed chase along an interstate highway in his
pickup truck following a failure to pay for gasoline at a service
station. After police took defendant into custody, they discovered
cocaine in his shirt pocket. Defendant also spat on a police
officer.
On January 26, 1994, defendant was convicted by a Pulaski
County jury of aggravated battery and unlawful possession of a
controlled substance. 720 ILCS 5/12--4(b)(6), 570/402 (West 1992).
On March 17, 1994, defendant was sentenced to concurrent prison
terms of three years for aggravated battery and one year for the
drug offense. Defendant was also ordered to pay fees and costs and
was assessed a $500 fine. A credit was applied by the trial court
reducing defendant's period of imprisonment by 114 days, the number
of days he served in custody prior to sentencing. Defendant did not
request, and the court did not order, that a per diem credit for
time in custody prior to sentencing, pursuant to section 110--14,
be applied against his $500 fine. 725 ILCS 5/110--14 (West 1994).
On appeal, defendant claimed, inter alia, that he was entitled
to the per diem credit allowed under section 110--14. The State
maintained that defendant had waived the credit by failing to apply
for it. The appellate court noted that, despite the elimination of
the clerk notification requirement from section 110--14 by
amendment in 1994, nothing within the record indicated that
defendant had been notified of the credit at the trial level. 276
Ill. App. 3d 242. The court declined to follow People v. Toolate,
274 Ill. App. 3d 408 (1995), which held that the issue of a section
110--14 credit was waived on appeal based on a defendant's failure
to raise the issue in the trial court at sentencing or in a post-
trial motion. See also People v. Hillsman, 281 Ill. App. 3d 895,
896 (1996). Reasoning that it was "inherently unfair" to make
defendant keep records of the time he was incarcerated, the court
also expressed hesitancy to hold that a statutory right had been
waived, absent an affirmative showing of waiver on the record. The
court affirmed defendant's conviction and sentence, and modified
the judgment, pursuant to section 110--14, to reflect a $500 credit
against the $500 fine for the period of defendant's incarceration
prior to sentencing. 276 Ill. App. 3d at 248.
We granted leave to appeal (155 Ill. 2d R. 315). Appellant
subsequently elected to supplement its petition with its appellate
brief pursuant to Supreme Court Rule 315(g) (155 Ill. 2d R.
315(g)). We now affirm.
SECTION 110--14
Section 110--14 of the Code of Criminal Procedure of 1963
originally provided:
"Any person incarcerated on a bailable offense who
does not supply bail and against whom a fine is levied on
conviction of such offense shall be allowed a credit of
$5 for each day so incarcerated prior to conviction
except that in no case shall the amount so allowed or
credited exceed the amount of the fine." (Emphasis
added.) Ill. Rev. Stat. 1965, ch. 38, par. 110--14.
Effective October 1, 1977, the legislature amended the
provision to add (1) the phrase "upon application of defendant,"
and (2) the requirement that the circuit court clerk give written
notice of the credit to an eligible defendant at the time of his
conviction. Section 110--14 thus provided:
"Any person incarcerated on a bailable offense who
does not supply bail and against whom a fine is levied on
conviction of such offense shall be allowed a credit of
$5 for each day so incarcerated upon application of the
defendant. The clerk of the court shall notify the
defendant in writing of this provision of the Act at the
time he is convicted. However, in no case shall the
amount so allowed or credited exceed the amount of the
fine." (Emphasis added.) Ill. Rev. Stat. 1977, ch. 38,
par. 110--14.
Effective January 1, 1994, the legislature again amended
section 110--14 by eliminating the language concerning clerk
notification, but retaining the language concerning application of
the defendant. Section 110--14 thus provided:
"Any person incarcerated on a bailable offense who
does not supply bail and against whom a fine is levied on
conviction of such offense shall be allowed a credit of
$5 for each day so incarcerated upon application of the
defendant. However, in no case shall the amount so
allowed or credited exceed the amount of the fine."
(Emphasis added.) 725 ILCS 5/110--14 (West 1994).
Defendant does not dispute that the 1994 amended version of
section 110--14 governs consideration of any credit in this case.
When a change of law merely affects the remedy or law of procedure,
all rights of action will be enforceable under the new procedure,
without regard to whether they accrued before or after such change
of law and without regard to whether or not the action has been
instituted, unless there is a savings clause as to existing
litigation. Maiter v. Chicago Board of Education, 82 Ill. 2d 373,
390 (1980).
It is clear from the statute that any change in law resulting
from the 1994 amendment, which eliminated the clerk notification
requirement, could only have affected remedy or procedure and not
the substantive law. See Rivard v. Chicago Fire Fighters Union,
Local No. 2, 122 Ill. 2d 303, 310 (1988) (procedure embraces
pleading, evidence and practice, which are legal rules directing
course of proceedings to bring parties into court and course of
court afterwards). Further, the 1994 amendment became effective
without a savings clause. Accordingly, we find that although the
instant criminal acts occurred on October 26, 1993, the 1994
amended version of section 110--14 in effect on January 26, 1994,
the date of defendant's conviction, governs consideration of any
credit in this case.
ANALYSIS
The State claims that the appellate court erred in this case,
by awarding the per diem credit, because section 110--14 no longer
includes the clerk notification requirement which previously
provided the foundation for reviewing courts to excuse on appeal a
defendant's failure to apply for the credit at the trial level. The
State claims that the court has elsewhere correctly recognized the
intended effect of the 1994 amendment which eliminated the clerk
notification requirement. See Toolate, 274 Ill. App. 3d 408.
The State takes the position that, under section 110--4, since
amendment in 1977, a defendant must apply for the per diem credit
at the trial level as a precondition to the statutory right to the
credit or else forfeit the right. Section 110--14 thus confers only
a limited statutory right to the credit that cannot be recognized
as a matter of course on appeal. The State contends that the
statutory evolution of section 110--4, legislative debates, and the
provision's inclusion among bail provisions shows that the
opportunity for obtaining the credit has always been limited to the
trial level. During the period between the 1977 and 1994
amendments, when the provision included the clerk notification
language, there existed a foundation for reviewing courts to excuse
a defendant's failure to timely apply at the trial level. People v.
Winkler, 77 Ill. App. 3d 35 (1979) (allowing credit on appeal,
though defendant failed to apply for credit upon conviction in the
trial court, where no indication of clerk notification as required
by statute). According to the State, with the elimination of the
clerk notification requirement by amendment in 1994, any basis for
excusing a defendant's failure to apply for the credit at the trial
level ceased to exist. The 1994 amendment, as shown by legislative
debates, did not affect that part of section 110--14 requiring that
a defendant apply at the trial level as a precondition to receiving
the credit.
Defendant maintains that despite the 1994 amendment
eliminating the clerk notification requirement, the appellate panel
here correctly found that the defendant's failure to apply for the
credit in the trial court did not result in a waiver of the
statutory right to the credit on appeal. Defendant points out that
other appellate decisions have also taken this position. See People
v. Scott, 277 Ill. App. 3d 565, 566-67 (1996); People v. Nixon, 278
Ill. App. 3d 453, 460 (1996).
According to defendant, under any amended version of section
110--4, a defendant is not limited to applying for the per diem
credit only at the trial level. Defendant maintains that the plain
language and meaning of section 110--14 reveals no legislative
intent to limit a defendant's opportunity for seeking the credit to
the trial level, nor any legislative intent that the failure to
apply for the credit in the trial court results in forfeiture of
the credit. Defendant argues that the State's interpretation of
section 110--14 and the effect of the 1993 amendment is contrary to
legislative practice and inconsistent with statutory construction
principles. Defendant points out that the appellate court has
consistently declined to find waiver of the credit and if the
legislature had intended to discontinue this practice by amending
the provision in 1993, it would have included such a waiver.
Instead, as shown by legislative debates, the 1993 amendment did
not affect section 110--14 in any way other than to relieve the
circuit clerk of the duty to notify defendants of the provision.
The primary rule of statutory construction is to ascertain and
give effect to the intention of the legislature, and that inquiry
appropriately begins with the language of the statute. People v.
Hare, 119 Ill. 2d 441, 447 (1988). There is no rule of construction
which allows the court to declare that the legislature did not mean
what the plain language of the statute imports. Where an enactment
is clear and unambiguous, the court is not free to depart from the
plain language and meaning of the statute by reading into it
exceptions, limitations, or conditions that the legislature did not
express (see Solich v. George & Anna Portes Cancer Prevention
Center of Chicago, Inc., 158 Ill. 2d 76 (1994); see also In re
Estate of Swiecicki, 106 Ill. 2d 111, 120 (1985), quoting Belfield
v. Coop, 8 Ill. 2d 293, 307 (1956)), nor is it necessary for the
court to search for any subtle or not readily apparent intention of
the legislature (DiFoggio v. Retirement Board of the County
Employees Annuity & Benefit Fund, 156 Ill. 2d 377 (1993); cf.
People v. Welty, 275 Ill. App. 3d 10 (1995) (in absence of more
explicit statutory prohibition denying day-for-day credit against
periodic imprisonment for time served as result of given offense,
court loathe to create exception to credit provision by
implication)). Where the language of a statute is clear and
unambiguous, it will be given effect without resort to other aids
for construction. People v. Sheehan, 168 Ill. 2d 298 (1995).
Criminal or penal statutes are to be strictly construed in favor of
an accused and nothing should be taken by intendment or implication
beyond the obvious or literal meaning of statute. People v.
Shinkle, 128 Ill. 2d 480 (1989).
An amendment is to be construed together with the original act
to which it relates. Illinois Chiropractic Society v. Giello, 18
Ill. 2d 306 (1960). Every amendment to a statute is presumed to
have a purpose, and a court must consider the language of an
amended statute in light of the need for amendment and the purpose
it serves. People v. Richardson, 104 Ill. 2d 8 (1984); see also In
re Marriage of Freeman, 106 Ill. 2d 290 (1985). A judicial
interpretation of a statute is considered part of the statute
itself until the legislature amends it contrary to that
interpretation. See Miller v. Lockett, 98 Ill. 2d 478 (1983).
The express language of section 110--14, as amended in 1994,
provides that an eligible defendant "shall be allowed" a per diem
credit "upon application" for it. Section 110--14 is silent
concerning any time frame or procedural stage during which such
application either must or can be made. Furthermore, at no time
prior to the 1994 amendment did section 110--14 include such a
limitation. Subsequent to the 1977 amendment, and until the 1994
amendment, the provision provided that the circuit clerk was to
notify an eligible defendant of the credit "at the time he is
convicted." 725 ILCS 5/110--14 (West 1992). Within section 110--14
during this period, the phrase "at the time he is convicted"
clearly qualified the clerk notification requirement and not the
defendant application language. The phrase did not even appear
within the same sentence as the language pertaining to a
defendant's application. Furthermore, there is no indication from
the language of that version of the statute that the clerk
notification requirement was added by the legislature because
defendants were required, concomitantly, to apply for the credit at
the trial level.
In addition, section 110--4 has carried no indication on its
face, throughout its evolution, that a defendant must apply at the
trial level for the credit, as a precondition to receiving any
benefit of the credit, or risk forfeiture of the credit. At all
relevant times, both before and subsequent to the 1977 and 1993
amendments, section 110--14 has expressly provided that an eligible
defendant "shall be allowed" the credit.
Generally, the use of the word "shall" in a statute is
regarded as indicating a mandatory rather than a directory intent.
The rule is not, however, an inflexible one; the statute may be
interpreted as permissive, depending upon the context of the
provision and the intent of the drafters. See People v. Davis, 93
Ill. 2d 155, 162 (1982); People v. Youngbey, 82 Ill. 2d 556, 562
(1980).
It is significant that the legislature, when enacting article
110 of the Code of Civil Procedure in 1963, was concerned with
inequities posed by the administration of bail in criminal cases.
See People ex rel. Carroll v. Frye, 35 Ill. 2d 604, 606 (1966);
Ill. Ann. Stat., ch. 38, art. 110, Committee Comments--1963, at
273-74 (Smith-Hurd 1980) (referring to discriminatory effect of
requiring bail of indigents who cannot even pay bond premiums). The
legislature sought to minimize, if possible, those inequities in
its enactment of article 110. Consequently, in light of these
concerns, section 110--14, like other sentencing provisions which
employ the word "shall" to confer a statutory right to credit (see
730 ILCS 5/5--8--7(b), (c) (West 1992)), would appear to
contemplate a mandatory monetary credit for incarceration prior to
sentencing on a bailable offense.
The 1977 amendment added the phrase "upon application of the
defendant" to the sentence stating that the credit "shall be
allowed." The addition of this phrase made clear that a defendant
was to be allowed the credit upon his request for it. Cf. People v.
Emery, 190 Ill. App. 3d 171, 173 (1989) (clear purpose of 1977
amendment was to put defendant on notice of credit so he might
request it).
Even assuming that a defendant's application was intended as
a precondition to the statutory right to the credit, section 110--
14 remained silent during this period concerning any time frame or
procedural stage for such application to occur. Moreover, the
language pertaining to timely clerk notification was subsequently
eliminated by the 1994 amendment, but no change was made to the
language concerning defendant application. In sum, section 110--
14's language does not indicate forfeiture of the statutory right
to the credit for failure to apply at the trial level.
The State, however, reasons that if the absence of an express
statement that a defendant is limited to a trial level application
means that a defendant is not so limited, and may receive the
credit on appeal, then conversely, the absence of an express
statement that the credit can be awarded on appeal means that it
cannot be. We reject this reasoning.
A court is not at liberty to read limitations and exceptions
into an unambiguous statute, regardless of how such restrictions
are characterized. Moreover, unlike the absence of an express
limitation of application for the credit to the trial level, the
absence of an express allowance of the credit on appeal does not
necessarily operate as a negation of that procedural avenue,
without more. Furthermore, it would have been unnecessary here for
the legislature to expressly allow the credit on appeal when
application for the credit was not expressly limited to the trial
level.
The State also asserts that both this court and the appellate
court have acknowledged the time frame during which the credit
benefit is meant to operate. Thus, the court stated in People v.
Hare, 119 Ill. 2d 441, 444 (1988), that "[s]ection 110--14 of the
Code of Criminal Procedure of 1963 [citation] provides a $5 credit,
to be applied against a subsequently imposed fine." The appellate
court stated in People v. Smith, 258 Ill. App. 3d 261, 270 (1994),
that "for purposes of the application of section 110--14,
`conviction' includes the entry of sentence." The State reads too
much into these cases.
Section 110--14 did not indicate that any credit was
necessarily awarded before the imposition of a fine. Section 110--
14 provided that persons incarcerated on a bailable offense and
"against whom a fine is levied on conviction of such offense shall
be allowed a credit." Ill. Rev. Stat. 1987, ch. 38, par. 110--14.
As was recognized in Smith, Hare appears to reflect an assumption,
perhaps because of its underlying facts, that the credit was given
only for periods of incarceration prior to trial. Moreover, Hare
was concerned with issues other than those presented here.
Consequently, one cannot rely on Hare's single statement of dictum
as authority that section 110--14 contemplates operation of the
credit only at the trial level.
In Smith, the appellate court interpreted the term
"conviction" within section 110--14 to include, along with the
judgment, the entry of the sentence. The interpretation sought to
address whether the period of a defendant's incarceration after
trial could be credited against a fine. The interpretation did not
address any period during which the credit could be sought. Hare
and Smith thus do not represent authority for the interpretation of
section 110--14 urged here by the State.
Viewed as a whole, the plain language of section 110--14 and
its amendments indicates the benefit of the credit is not limited
to persons who apply for it at the trial level. Cf. Hare, 119 Ill.
2d 441 (declining to interpret section 110--14 as limited to
persons who receive only a fine upon conviction or excluding
persons who have also received a sentence credit for time spent in
custody awaiting trial); Smith, 258 Ill. App. 3d at 268-69
(declining to interpret section 110--14 credit as limited only to
the period of incarceration before and during trial); People v.
Robinson, 172 Ill. 2d 452, 462-63 (1996) (declining to interpret
section 5--7--8(b) sentencing credit as limited to time not
credited against another sentence). The plain language of section
110--14 and its amendments also carries no indication that
application at the trial level is a statutory precondition to the
right to any credit. We do not find section 110--14 to be ambiguous
in this regard. Cf. Hare, 119 Ill. 2d at 447 (finding section 110--
14 to be unambiguous).
We agree with defendant that the legislature has provided
expressly for procedural time limitation periods when it so
intends. See 725 ILCS 5/122--1 (West 1994) (post-conviction,
generally, must be filed within three years from date of
conviction); 725 ILCS 5/116--1(b) (West 1994) (written motion for
new trial must be filed within 30 days from entry of judgment); 730
ILCS 5/5--8--1(c) (West 1994) (a timely motion to reduce sentence
must be filed within 30 days after sentence imposed); 725 ILCS
5/116--2(a) (West 1994) (written motion for arrest of judgment must
be filed within 30 days from entry of judgment); 725 ILCS 5/114--
5(a) (West 1994) (motion for substitution of judge may be made
within 10 days after cause placed on judge's trial call). Also, the
legislature typically utilizes less oblique means when it intends
that a forfeiture of claims or rights occurs. See, e.g., 730 ILCS
5/5--8--1(c) (West 1994) (defendant waives right to challenge
correctness of sentence or other aspects of sentencing hearing is
claim not included in written motion to reduce sentence within 30
days); 720 ILCS 5/1--6(a) (West 1994) (objections of improper place
of trial are waived unless made before trial).
The State acknowledges that absent some ambiguity, the task of
discerning legislative intent is normally limited to reading a
statute's plain language. The State, nevertheless, maintains that
the 1977 and 1994 amendments to section 110--14 represented a
material change of law, and that such a change allows for our
consideration of the legislative debates surrounding those
amendments.
Generally a material change in the language of an unambiguous
statute creates a presumption of a change in legal rights, although
it can be rebutted by evidence of contrary legislative intent. See
State of Illinois v. Mikusch, 138 Ill. 2d 242, 252 (1990); Hare,
119 Ill. 2d at 450-51. To determine whether a right is being added
to or taken from the original act, or whether the provision is
being merely interpreted, circumstances surrounding the enactment
must be considered. See 1A N. Singer, Sutherland on Statutory
Construction §22.30, at 267 (5th ed. 1993); see also O'Connor v.
A&P Enterprises, 81 Ill. 2d 260, 271 (1980). If circumstances
indicate that the legislature intended to interpret the original
act, the presumption of change will be rebutted. O'Connor, 81 Ill.
2d at 271.
Here, the State asserts that the 1977 amendment clarified the
existing precondition that defendants must apply for the credit at
the trial level before they receive the benefit of any credit.
Defendant does not argue the scope and effect of the 1977 amendment
inasmuch as he contends that the time limitation claimed by the
State has not been shown to exist on the face of the statute or its
amendments. Thus, neither party contends that the 1977 amendment
changed the law. As such, no issue is joined concerning whether the
1977 amendment is a substantive change in law or merely a
clarification of existing law which normally would necessitate
consideration of the legislative debates surrounding the amendment.
Cf. Varelis v. Northwestern Memorial Hospital, 167 Ill. 2d 449, 461
(1995) (referring to parties' oppositional positions); Mikusch, 138
Ill. 2d at 252 (same).
Concerning the 1994 amendment, the State claims that it
changed the law, eliminating the basis on which to allow the credit
on appeal. Defendant, by contrast, argues that the amendment did
not change the law in that respect. Thus, the issue is joined with
respect to the 1994 amendment. In the circumstances presented here,
where consideration of legislative debate surrounding the
elimination of an oft-interpreted statutory requirement is
appropriate, we believe it is advisable to consider also
legislative debates surrounding the adoption of that requirement.
The State claims that the legislative debates surrounding the
1977 amendment, explaining the notification requirement, indicate
that only a limited opportunity existed at the trial level for
seeking the credit, and that the failure to take advantage of that
opportunity resulted in forfeiture of the credit. The State
maintains that the debates show an intent to link the clerk
notification requirement with defendant application to ensure that
defendants apply for the credit at the trial level and thereby
avoid forfeiting it. Based on this linkage, the State argues
elsewhere in its brief that the phrase "at the time of conviction"
must be implied to modify language concerning allowance of the
credit "upon application of the defendant." According to the State,
the debates also indicate "in some way" that even before the
defendant application language was added, section 110--14
contemplated that the "opportunity" for the credit would be
forfeited unless the credit was applied for at the trial level. In
the State's view, the addition of the clerk notification
requirement in 1977 made plain that no opportunity for the credit
was available subsequent to trial level proceedings.
A review of the legislative debates belies the State's
assertions. In the Illinois House of Representatives,
Representative Greiman remarked:
"What's happening now because of the system is that
they're not giving credit for time served. A man will
serve two or three days then be let out, then get a fine
imposed a month later. He doesn't know about this law
that he is entitled to. Nobody is checking on it, the
clerk doesn't ... in the courtroom doesn't think about it
and so he ends up not getting credit for the time
served[;] *** therefore, we want the clerk of the court
to make a form to give ... to advise that defendant of
his rights, that he has it and for the defendant then to
in turn sit out the time that he has served. So that he
will get appropriate credit against a fine." 90th Ill.
Gen. Assem., House Proceedings, June 21, 1977, at 108
(statements of Representative Greiman).
In the Senate, Senator Carroll stated:
"This bill deals with the five dollar credit to be given
to people incarcerated other than for certain major
crimes. The problem has been that most of them are not
aware of the provisions of this nor is it capable for the
county clerks or the clerks of the circuit courts of the
various counties to enforce the provisions of the bill as
it now stands for they don't always know at the time of
trial who is on bail, et cetera. So this is a change in
that to provide that the clerk shall notify the defendant
in writing and then he will then make application based
on that writing for the five dollar a day credit. This
was brought to us by the circuit court clerks in what
they feel will be an attempt to better expedite the
meaning of the law that has been on the books ***." 80th
Ill. Gen. Assem., Senate Proceedings, May 23, 1977, at
47-48 (statements of Senator Carroll).
This commentary does not indicate a concern by the legislature
with legal forfeiture of the credit. We agree with the State that
the commentary reveals the legislature's concern that defendants
were not taking advantage of an opportunity to apply for the
credit, and that the clerk notification requirement was intended to
prompt defendants to do so. We do not agree, however, that the
commentary indicates the legislature considered this to be a
legally limited opportunity to apply, or that defendants suffered
a legal forfeiture of the right to the credit by not taking
advantage of any practical opportunity to apply for it. The
commentary in no way speaks to the issue of any legal inability of
defendants to receive the credit through an appeal.
Both parties acknowledge that in 1994, the legislature did not
intend to change the aspect of section 110--14 pertaining to
defendant application by the elimination of the clerk notification
requirement. The State maintains, however, that the 1994 amendment
left defendant application intact as a statutory precondition. The
State insists the legislature intended that the credit be precluded
on appeal. The 1994 legislative debates reveal no such intent.
Essentially, Representative Lang confirmed, when questioned by
Representative Wennlund, that the amendment deleting the clerk
notification requirement merely "relieves" the circuit clerk of the
duty to notify defendants. See 88th Ill. Gen. Assem., House
Proceedings, April 20, 1993, at 17 (statements of Representatives
Wennlund and Lund). These comments do not support the State's
position in the least.
The State additionally claims that placement of section 110--
14 among bail provisions found in sections 110--11 through 110--18
of the Code of Criminal Procedure of 1963 (725 ILCS 5/110--11
through 110--18 (West 1992)), which the State claims concern
proceedings leading up to trial and for which appellate review is
expressly provided for, indicates an intent to preclude the credit
on appeal. We disagree.
It is apparent that these provisions are grouped together not
on the basis of the procedural stage during which they are
applicable, but on the basis of the general subject matter, bail,
which they address. For instance, section 110--11 concerns bail on
a new trial (725 ILCS 5/110--11 (West 1992)) and section 110--16
addresses bail bond forfeiture for a defendant's absence at trial
(725 ILCS 5/110--16 (West 1992)). Section 110--14 is included here
because, as its title states, it concerns "[c]redit for
incarceration on bailable offense." 725 ILCS 5/110--14 (West 1992).
Also, the bail provisions the State cites as specifically providing
for appellate review concern matters involving judicial discretion
(see 725 ILCS 5/110--4, 110--5, 110--6 (West 1992)). The statutory
right to a per diem credit found in section 110--14, by its
language, is in the nature of a mandatory right subject to
assertion by a defendant. Thus, judicial discretion is not involved
in a decision to allow the credit.
Citing a line of cases, emanating from Winkler, the State,
nevertheless, asserts that the appellate court has correctly
recognized the legislative intent in section 110--14 to preclude
the credit on appeal (see, e.g., People v. Stahr, 255 Ill. App. 3d
624, 627 (1994); People v. Childs, 226 Ill. App. 3d 915, 922-23
(1992)). When the legislature amended the statute in 1994, by
eliminating the clerk notification requirement, presumably it was
aware that reviewing courts had been relying on this foundation to
excuse the failure of the precondition, and the elimination of that
foundation was intended by the legislature to indicate that the
credit was precluded on appeal.
Defendant relies generally on these same cases to assert that
the appellate court has consistently declined to find "waiver" of
a section 110--14 credit on appeal. Defendant argues that when the
legislature amended the statute in 1994, it was presumably aware of
this judicial practice and had the legislature intended that the
practice be discontinued, it would have included within the
provision an express limitation period that would operate
implicitly to waive any unasserted right to a credit. The failure
to include such a limitation means that it was not intended by the
legislature.
Winkler is the seminal case recognizing the credit on appeal
during the period between the 1977 and 1994 amendments. Winkler
found that, although the defendant "failed to apply for the credit
upon conviction in the trial court," he would not be denied the
credit where there was no indication that he had been notified by
the circuit clerk in writing of the credit pursuant to section 110-
-14. The Winkler court modified the judgment to reflect a per diem
credit of $20 for the four days the defendant had spent in jail.
Winkler, 77 Ill. App. 3d at 36-37.
Decisions within this period and subsequent to Winkler,
employed slightly different approaches. Several decisions, similar
to Winkler, acknowledged the defendant's failure to apply
previously for the credit, but consistently allowed the credit on
appeal based on the lack of any indication that the circuit clerk
notified the defendant of section 110--14. See People v. Roby, 169
Ill. App. 3d 187, 193 (1988) (failure to make timely application
does not preclude credit on appeal); People v. Johnston, 160 Ill.
App. 3d 536, 544 (1987); People v. Bratcher, 149 Ill. App. 3d 425,
430 (1986); People v. Smith, 133 Ill. App. 3d 613 (1985); People v.
Young, 96 Ill. App. 3d 634, 636 (1981). These decisions implied
that a defendant's application at the trial level was somehow
requisite to the credit, but they did not explain whether such
application preconditioned the right or constituted merely evidence
of the right's assertion. Unlike Winkler, these decisions did not
express that defendants were required to apply for the credit upon
conviction in the trial court.
Other decisions during this same period discussed a
defendant's failure to apply for the credit at the trial level in
terms of waiver analysis, but consistently declined to find waiver
because there was no showing that the defendants were informed as
required by the statute. Again, unlike Winkler, these decisions did
not express that defendants were required to apply for the credit
upon conviction in the trial court. People v. Childs, 226 Ill. App.
3d 915, 922-23 (1992); People v. Sinnott, 226 Ill. App. 3d 923, 935
(1992) (no waiver of issue of credit for failure to present
argument at trial or in post-trial motion where no indication that
clerk informed defendant of entitlement); see also People v. Stahr,
255 Ill. App. 3d 624 (1994) (though defendant did not apply for
credit in trial court, "issue" not waived on appeal); People v.
Plante, 253 Ill. App. 3d 472 (1993) (same); People v. Jenkins, 251
Ill. App. 3d 1, 7 (1993); People v. Tippett, 232 Ill. App. 3d 921,
922-23 (1992); People v. Laster, 208 Ill. App. 3d 482, 483 (1990);
People v. Taylor, 84 Ill. App. 3d 467, 471 (1980); People v. Brown,
83 Ill. App. 3d 261, 262 (1980); see also People v. Mills, 239 Ill.
App. 3d 997, 999 (1993) (parties' stipulation to fine and costs
without mention of credits did not constitute waiver of statutory
credits).
The State agrees with these decisions to the extent that they
view defendant application at the trial level as somehow requisite
to the credit. The State disagrees, however, that a defendant's
failure to apply for the credit at the trial level is simply a
matter of waiver; failure to apply for the credit at the trial
level forfeits the right to the credit.
Based on a plain reading of section 110--14, we believe
Winkler interpreted section 110--4 incorrectly. A plain reading of
section 110--14 during the period between 1977 and 1994 does not
indicate that defendants were required to apply for the credit upon
their conviction in the trial court. That limitation pertained only
to the circuit clerks' obligations. The decisions which
subsequently followed Winkler avoided making this express
statement, and they are inconsistent and somewhat equivocal in
their treatment of defendants' failures to apply under the statute.
We believe the incorrect interpretation of section 110--14 by
Winkler contributed to the judicial inconsistency and uncertainty
in this area.
Decisions subsequent to the 1994 amendment are not in
agreement regarding the effect of the legislature's elimination of
the clerk notification requirement. The State recommends People v.
Toolate, which found that elimination of the clerk notification
requirement allowed for application of the "normal rules" of waiver
of an issue on appeal. See Toolate, 274 Ill. App. 3d at 409.
Toolate held the issue of a section 110--14 credit was waived for
purposes of appeal because the defendant failed to raise the issue
in the trial court at sentencing or in a post-trial motion. Accord
People v. Hillsman, 281 Ill. App. 3d 895, 896 (1996). While not
agreeing that waiver analysis was appropriate, the State contends
Toolate correctly understood that the legislature intended with the
1994 amendment to preclude the credit on appeal. The State cites to
no decision that entirely supports its view of section 110--14
following the 1994 amendment.
Two other post-1994 decisions, relied on by defendant, have
disagreed with the approach taken by Toolate, and instead viewed
section 110--14 as conferring a clear statutory right which is not
waived despite any failure to raise the "issue" at the trial level.
See Scott, 277 Ill. App. 3d at 566; Nixon, 278 Ill. App. 3d at 460.
The Scott court expressed its reluctance to find that the right to
the credit had been waived and stated that "[g]ranting the credit
is a simple ministerial act that will promote judicial economy by
ending any further proceedings over the matter." Scott, 277 Ill.
App. 3d at 566.
We believe the approach taken in Scott and Nixon is correct.
As discussed previously, based on a plain reading of the language
of section 110--14, both before the 1994 amendment and subsequent
to it, the statutory right to a per diem credit is conferred in
mandatary terms while being subject to a defendant's application.
As such, the "normal rules" of waiver do not apply (see Toolate,
274 Ill. App. 3d at 409), and the right is cognizable on appeal as
a matter of course subject to a defendant's application for it. The
1994 legislative debates show that the elimination of the clerk
notification requirement did not affect this aspect of section 110-
-14. The 1994 amendment did make clear, by eliminating the clerk
notification requirement and its terms, that a defendant's
application for the credit was not intended to be conditioned by
the terms of the prior-included clerk notification requirement, and
that a defendant's statutory right to the credit is not intended to
turn, for purposes of review, on notice by the clerk, whether in
compliance with the statute or not.
Notably, the mandatory credit in section 5--8--7(b) has been
treated similarly. See People v. Sizemore, 226 Ill. App. 3d 956
(1992) (comparing section 5--8--7(b) credit raised on appeal to
treatment of section 110--14 credit under same circumstances);
People v. Donnelly, 226 Ill. App. 3d 771 (1992) (because of
statutory right to credit, error regarding credit not waived for
failure to raise in trial court); People v. Beech, 202 Ill. App. 3d
576 (1990) (emphasizing that credit could have been raised on
appeal); People v. Bates, 179 Ill. App. 3d 705 (1989) (credit could
have been raised on appeal).
CONCLUSION
We hold that a defendant may be allowed on appeal a per diem
credit pursuant to section 110--14 for incarceration prior to
sentencing. The judgment of the appellate court, modifying the
trial court's judgment of conviction, is affirmed.
Appellate court judgment affirmed.
JUSTICE MILLER, dissenting:
I do not agree with the majority's conclusion that the per
diem monetary credit allowed against fines by section 110--14 of
the Code of Criminal Procedure of 1963 (725 ILCS 5/110--14 (West
1994)) may be obtained on appeal even though a defendant has not
first applied for the credit in the circuit court. In my view, such
a request must be made in the trial court, or else it is lost.
The majority's interpretation of section 110--14 is contrary
to both the plain language and the legislative history of that
provision. The version of the statute applicable to this case took
effect January 1, 1994; it provides:
"Any person incarcerated on a bailable offense who
does not supply bail and against whom a fine is levied on
conviction of such offense shall be allowed a credit of
$5 for each day so incarcerated upon application of the
defendant. However, in no case shall the amount so
allowed or credited exceed the amount of the fine." 725
ILCS 5/110--14 (West 1994).
The majority believes that a defendant who fails to request
the credit in the circuit court may wait until the cause is on
appeal to seek the same relief from the reviewing court. I disagree
with the majority and would instead conclude that a defendant
forfeits the statutory entitlement if he does not apply for it in
the circuit court. See People v. Hillsman, 281 Ill. App. 3d 895
(1996) (finding waiver); People v. Toolate, 274 Ill. App. 3d 408
(1995) (same). In my view, the phrase "upon application of the
defendant" plainly contemplates that the defendant will request the
credit while his case is before the trial judge, and I do not
believe that the legislature intended that the matter of the credit
could be raised for the first time on review, without regard to any
prior request for it in the court in which the fine was imposed.
The history of section 110--14 provides further proof that the
legislature intended for the credit to be forfeited if the
defendant did not make an appropriate request in the circuit court.
Before 1994, section 110--14 contained an additional sentence
requiring the circuit court clerk to "notify the defendant in
writing of this provision of the Act at the time he is convicted."
725 ILCS 5/110--14 (West 1992). Under that version of the statute,
as the majority opinion notes, the appellate court would excuse a
defendant's failure to raise the credit issue in the circuit court
if the record did not show that the circuit court clerk had
provided the necessary notice. See, e.g., People v. Stahr, 255 Ill.
App. 3d 624, 627 (1994); People v. Childs, 226 Ill. App. 3d 915,
922-23 (1992); People v. Roby, 169 Ill. App. 3d 187, 193 (1988);
People v. Winkler, 77 Ill. App. 3d 35, 37 (1979). Those decisions
suggest, of course, that procedural default of the credit issue
would have been the consequence of the defendant's failure to seek
the credit in the trial court if the clerk had provided the
necessary notice or, alternatively, if the statute had not required
that any notice be given at all. We must assume that the
legislature, when it later amended section 110--14, was aware of
the appellate court's longstanding interpretation of the statute.
See People v. Hickman, 163 Ill. 2d 250, 262 (1994). By eliminating
the requirement that the clerk provide notice, the legislature thus
removed the very ground on which defendants' default of the credit
issue was customarily excused.
Given the text and history of section 110--14, I would
conclude that the legislature has intended to limit availability of
the per diem credit authorized by that provision to defendants who
apply for it in the circuit court.