NO. 5-05-0683
NOTICE
Decision filed 03/02/07. The text of
IN THE
this decision may be changed or
corrected prior to the filing of a
APPELLATE COURT OF ILLINOIS
Peti tion for Rehearing or th e
disposition of the same.
FIFTH DISTRICT
________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Shelby County.
)
v. ) No. 04-CF-96
)
SCOTT MICHAEL PRINCE, ) Honorable
) Michael P. Kiley,
Defendant-Appellant. ) Judge, presiding.
________________________________________________________________________
JUSTICE SPOM ER delivered the opinion of the court:
The defendant, Scott Michael Prince, asks this court to grant him credit for time spent
in custody prior to his sentencing, against the $200 in fines that accompanied his sentences
following pleas of guilty to two counts of predatory criminal sexual assault. The defendant
does not raise any other issues regarding his convictions and sentences. For the following
reasons, we grant the defendant the requested credit and otherwise affirm his convictions and
sentences.
On November 10, 2004, the defendant entered open pleas of guilty to two counts of
predatory criminal sexual assault. On March 18, 2005, the defendant was sentenced to 12
years' and 8 years' imprisonment, to be served consecutively. He was also ordered to pay a
$100 sexual assault fine and a $100 domestic violence fine. Although the defendant was
granted sentencing credit for 264 days spent in presentencing custody, he was not granted
credit against his fines.
The defendant now asks this court to grant him credit against his fines for the time
spent in presentencing custody. In support of his position, the defendant points to section
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110-14 of the Code of Criminal Procedure of 1963, which at the time of his offense stated
as follows:
"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 2002).
The defendant, citing People v. Woodard, 175 Ill. 2d 435, 457 (1997), notes as well that his
request for the $5-per-day credit is not subject to waiver and that he may request his credit
for the first time on appeal.
The State does not contest the defendant's assertion that the credit is not subject to
waiver, but the State notes instead that section 110-14 was amended, effective January 1,
2005, to include language stating that the credit described above "does not apply to a person
incarcerated for sexual assault" as that offense is defined in the Unified Code of Corrections
(730 ILCS 5/5-9-1.7(a)(1) (West 2004)). 725 ILCS 5/110-14(b) (West 2004). The State
posits that because the defendant was sentenced, and his fines imposed, subsequent to
January 1, 2005, he is not entitled to any monetary credit against his fines.
The defendant replies to the State's argument by pointing out that although he was
sentenced, and his fines were imposed, after January 1, 2005, his offense took place in 2004,
prior to the amendment. Accordingly, the defendant contends, the denial of credit against
his fines pursuant to the amendment would violate the federal and state prohibitions against
ex post facto laws.
We agree with the defendant. The United States Constitution prohibits both the
Congress (U.S. Const., art. I, §9) and the states (U.S. Const., art. I, §10) from enacting ex
post facto laws. The Illinois Constitution also forbids the enactment of ex post facto laws.
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Ill. Const. 1970, art. I, §16. The Illinois Supreme Court looks to the United States Supreme
Court's interpretation of the federal ex post facto prohibition to interpret the Illinois
prohibition. Fletcher v. Williams, 179 Ill. 2d 225, 229 (1997). The jurisprudence of the
United States Supreme Court on the matter of ex post facto laws, although steadily evolving,
is well-rooted in the seminal ex post facto case of Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L.
Ed. 648 (1798). In that case, Justice Chase noted that the proscription against ex post facto
laws found in the United States Constitution "necessarily requires some explanation; for,
naked and without explanation, it is unintelligible, and means nothing." Calder, 3 U.S. (3
Dall.) at 390, 1 L. Ed. at 650. Justice Chase examined the origin of the expression ex post
facto in the English common law and then cataloged ex post facto laws as criminal laws of
the following types:
"1st. Every law that makes an action done before the passing of the law, and which
was innocent when done, criminal; and punishes such action. 2d. Every law that
aggravates a crime, or makes it greater than it was, when committed. 3d. Every law
that changes the punishment, and inflicts a greater punishment, than the law annexed
to the crime, when committed. 4th. Every law that alters the legal rules of evidence,
and receives less, or different, testimony, than the law required at the time of the
commission of the offence, in order to convict the offender." (Emphasis in original.)
Calder, 3 U.S. (3 Dall.) at 390, 1 L. Ed. at 650.
Subsequent United States Supreme Court and Illinois Supreme Court decisions have
built upon this initial cataloging and in so doing have clarified the parameters of the
prohibition against ex post facto laws. According to the Illinois Supreme Court, a criminal
law will run afoul of the prohibition against ex post facto laws if it is retroactive and
disadvantageous to the defendant. People v. Malchow, 193 Ill. 2d 413, 418 (2000). A law
disadvantages a defendant if it criminalizes an act that was innocent when done, increases
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the punishment for a previously committed offense, or alters the rules of evidence by making
a conviction more easy to obtain. Malchow, 193 Ill. 2d at 418. The prohibition against ex
post facto laws applies only to laws that are punitive in nature, and it does not apply to costs,
which are compensatory, not punitive. People v. Bishop, 354 Ill. App. 3d 549, 561 (2004).
A fine, on the other hand, is a pecuniary punishment imposed as a part of a criminal sentence
and is subject to the prohibition against ex post facto laws. Bishop, 354 Ill. App. 3d at 562.
In the present case, a denial of the credit against the defendant's fines would increase
the punishment for a previously committed offense. At the time of the defendant's offense,
an individual convicted of that offense who accrued credit for time spent in custody prior to
sentencing would be entitled to offset the individual's fine to the tune of $5 per day of
incarceration. That credit was a part of the equation that made up the overall punishment
possible for the offense, and a denial of that credit now would alter that equation to the
defendant's detriment because it would increase the punishment possible for the defendant's
previously committed offense by denying the defendant the ability to use credit for time
spent in custody prior to sentencing to offset the defendant's fine. In this case, it would
increase the defendant's punishment by $200 more than the identical offense, with the
identical fine and time spent in presentencing custody, would have been punishable at the
time it was committed. That result is not permissible under ex post facto jurisprudence. See,
e.g., People v. Delgado, 368 Ill. App. 3d 985, 994 (2006) (the defendant was entitled to elect
to be sentenced under the preamendment version of section 110-14); In re Hunt, 28 Tex.
App. 361, 13 S.W. 145 (1890) (a statute reducing the rate per day allowed a county convict
as credit on a fine is an ex post facto law if applied retroactively).
For the foregoing reasons, we grant the defendant the credit he has requested, and we
otherwise affirm his convictions and sentences. Because the amount credited may not
exceed the amount of the fines (725 ILCS 5/110-14 (West 2002)), our ruling results only in
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the defendant's fines being paid in full.
Affirmed as modified.
GOLDENHERSH and WEXSTTEN1 , JJ., concur.
1
Originally, Justice Hopkins was assigned to the panel. Justice Wexstten was later
substituted on the panel and has read the briefs.
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NO. 5-05-0683
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
___________________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Shelby County.
)
v. ) No. 04-CF-96
)
SCOTT MICHAEL PRINCE, ) Honorable
) Michael P. Kiley,
Defendant-Appellant. ) Judge, presiding.
___________________________________________________________________________________
Opinion Filed: March 2, 2007
___________________________________________________________________________________
Justices: Honorable Stephen L. Spomer, J.
Honorable Richard P. Goldenhersh, J., and
Honorable James M. Wexstten, J.,
Concur
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Attorneys Daniel M. Kirwan, Deputy Defender, Paige Clark Strawn, Assistant Defender, Office
for of the State Appellate Defender, Fifth Judicial District, 117 North Tenth Street, Suite
Appellant #300, Mt. Vernon, IL 62864
___________________________________________________________________________________
Attorneys Hon. Alan Lolie, State's Attorney, Shelby County Courthouse, Shelbyville, IL 62565;
for Norbert J. Goetten, Director, Stephen E. Norris, Deputy Director, Kendra S. Peterson,
Appellee Staff Attorney, Office of the State's Attorneys Appellate Prosecutor, 730 E. Illinois
Highway 15, Suite #2, P.O. Box 2249, Mt. Vernon, IL 62864
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