dissenting:
I dissent.
I agree that the statutory language “sum which had been deposited” and “amount deposited” is ambiguous, but I do not agree that the better interpretation of section 110 — 7(f) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 110 — 7(f)) is to base the amount of the clerk’s fee upon the amount of the bail deposit at the time the bond is fully discharged.
In upholding section 110 — 7(f) in Schilb v. Kuebel (1970), 46 Ill. 2d 538, 264 N.E.2d 377, the supreme court spoke of the section providing for a fee based upon “the amount of bail originally set by the court” (emphasis added) (46 Ill. 2d 538, 543, 264 N.E.2d 377, 380) and described the purpose of the fee as allowing the courts “a reasonable fee as bond costs for handling bail bonds and offsetting the monetary amount of any loss resulting from the occasional bail jumper where the professional bondsman under the former system might have forfeited the amount of bail.” (Emphasis added.) 46 Ill. 2d 538, 544, 264 N.E.2d 377, 380.
Here, 1% of the amount of the “original” bail bond would have been the sum of $1,000 per bond which is the amount claimed by the State as the fee for the clerk. To reduce this amount of the fee, because, after the trial court judgment dismissing the charges, the court determined that bond in a smaller amount was still required, does not seem logical. The task of the clerk was, if changed at all, increased by the change in the amount of the bond. More importantly, the exposure of the county to “loss resulting from the occasional bail jumper where the professional bondsman under the former system might have forfeited the amount of bail” would be more accurately measured by 1% of the bond deemed necessary, while the charges were pending than by 1% of the amount of the bond as reduced later. As indicated in Schilb, the amount of the clerk’s fee is to be considered in comparison to the 10% premium previously charged by the professional bondsman. That premium was not returned to the accused upon his discharge of his responsibilities under the bond and was not reduced to such sum as to be based on the amount of bail finally required.
The holding of the majority might bring about illogical results in other cases as well. For example, if a defendant, held on a high bond, should be acquitted of a principal charge but convicted of an included much less serious offense, logic might dictate that his bond be reduced. However, if that were done, the clerk’s fee on his bond would be less than it would have been had he been completely acquitted. The majority’s holding would also place conflicting incentives on defendants and the State in regard to lowering of bonds in cases because of changed conditions and would create additional disputes.
With the benefit of hindsight, it appears that we might have saved additional litigation if we had resolved the question of the amount of the clerk’s fee when ruling on the former appeal. In any event, I would now affirm the order of the trial court permitting the clerk to retain $1,000 of the deposit on each bond. While language in Schilb would indicate that the amount of the “original” bond should determine the fee, I would hold that, generally, the highest amount of the bond should determine the fee. An exception to that rule would occur when a subsequent determination was made that the bond in the highest amount was excessive. Under those circumstances, the fee should be fixed in the highest amount of bond which had been fixed properly.