dissenting in part.
While I agree with the majority in upholding the conviction, I would modify the sentence by striking the $8.00 time payment fee.
Thomas committed the crime prior to the effective date of A.R.S. § 12-116 which generates the $8.00 time payment fee. Pursuant to A.R.S. § 1-246, an offender may be punished only under the law in force when the offense was committed. This principle reflects basic constitutional law. Here, A.R.S. § 12-116 was not in force when the offense was committed.
The majority relies on State v. Weinbrenner, 164 Ariz. 592, 795 P.2d 235 (App.1990), which held that the $8.00 time payment fee is not a penalty but merely a “procedure” for enforcing a penalty. This distinction strikes me as semantic magic. The $8.00 fee, whatever the legal label, is money extracted from a defendant as a penalty for a crime.
We have invalidated other analogous ex post facto dispositions. Our courts have recognized, for example, that a probationary increase is an ex post facto penalty when it increases the probationary penalty for a crime after its commission. State v. Mendivil, 121 Ariz. 600, 592 P.2d 1256 (1979).
Other states that have dealt with this issue in the guise of court costs and attorney fees have found after-the-fact penalties impermissible. Contrary to Weinbrenner, these courts have also found them substantive rather than procedural.
In Young v. Altenhaus, 472 So.2d 1152, 1154 (Fla.1985), the court stated that “a statutory requirement for the non-prevailing party to pay attorney fees constitutes ‘a new obligation or duty’ and is therefore substantive in nature.” Although Young is not a criminal case, its finding that the penalty is substantive conflicts with Weinbrenner ’s finding that a similar fee is merely procedural. The court in Schiefer v. State, 774 P.2d 133 (Wyo.1989), a criminal case, held that a defendant should not be responsible for counsel fees imposed by statute after the date of the crime because, as that court wrote, such a penalty was a “substantive” detriment. Id. at 136. Courts also have struck down as ex post facto a $200 court costs fee enacted after the date of the crime. State v. Bowman, 509 So.2d 929 (Fla.1987). Arizona’s imposition of the $8.00 fee appears analogous to ordering payment of attorneys fees or court costs.
The assumption that this little fee is not mandatory is unpersuasive. Apart from misdemeanor fines, a fined felon rarely, if ever, has the finances to pay a fine at the time of its imposition. Tacking on an additional payment as a charge on making installment payments remains a penalty. Even a penalty provision which requires a defendant to pay costs before being granted any “gain time accrued” has been held a substantive ex post facto provision even though defendant could receive “gain time” when costs are paid up front. State v. Yost, 507 So.2d 1099 (Fla.1987).
• The majority’s untranslated Latin quote — meaning that the law does not bother with trifles — recalls for me Felix Frankfurter’s comment when asked, as a young government lawyer, whether President Wilson’s unprovoked 1914 invasion of Mexico was an act of war: “It’s only an act of war,” he said, “when it’s against a great power, not against a small power.”