specially concurring:
I agree with the majority’s result, but I write separately because of my disagreement with Macke. The majority clarifies Macke by indicating that Macke did not require the filing of a motion to reduce sentence as a jurisdictional prerequisite to an appeal of a sentencing issue and instead treats the failure to file such a motion as a waiver of sentencing errors. While this clarification is an improvement, it does not, in my opinion, go far enough. I do not think Macke should be followed for the following reasons.
Section 5 — 8—1(c) of the Unified Code of Corrections states:
“A motion to reduce a sentence may be made, or the court may reduce a sentence without motion, within 30 days after the sentence is imposed. However, the court may not increase a sentence once it is imposed.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 38, par. 1005-8-l(c) (now 730 ILCS 5/5-8-l(c) (West 1992)).
The plain language of the statute, which says that a motion to reduce a sentence may be made, does not support the conclusion in Macke that “[sjection 5 — 8—1(c) requires that before a defendant can appeal only his sentence, he must first file a motion to reduce his sentence.” (Emphasis added.) (Macke, 224 Ill. App. 3d at 816, 587 N.E.2d at 1114.) Generally, when the word “may” is used in a statute, it implies permissive or discretionary rather than mandatory action. In re Marriage of Freeman (1985), 106 Ill. 2d 290, 478 N.E.2d 326; Ekl v. Knecht (1991), 223 Ill. App. 3d 234, 585 N.E.2d 156.
In addition, Macke added emphasis to a portion of the statute, presumably in support of its conclusion, that I believe supports the proposition that a motion to reduce a sentence is not necessarily required before a defendant may appeal his sentence. The emphasized language in Macke reads:
“If a motion to reduce a sentence is timely filed within 30 days after the sentence is imposed, then for purposes of perfecting an appeal, a final judgment shall not be considered to have been entered until the motion to reduce a sentence has been decided by order entered by the trial court.” Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—1(c) (as quoted and emphasized in People v. Macke (1992), 224 Ill. App. 3d 815, 816, 587 N.E.2d 1113, 1114).
This portion of section 5 — 8—1(c) does not make a motion to reduce a sentence a prerequisite to perfecting an appeal challenging only the sentence. Instead, it tolls the running of the time for an appeal until after the trial court rules on this motion, if such a motion is filed. The “If” that begins the quote is the important word in this analysis because it implies not that a motion must be filed but that a motion may be filed, an implication contrary to the conclusion of Macke.
Finally, Macke’s reliance on People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124, and People v. Wilk (1988), 124 Ill. 2d 93, 529 N.E.2d 218, is misplaced. Enoch construed the statute requiring post-trial motions for a new trial. That statute states that “[a] written motion for a new trial shall be filed by the defendant within 30 days following the entry of a finding or the return of a verdict.” (Emphasis added.) (Ill. Rev. Stat. 1991, ch. 38, par. 116—1 (now 725 ILCS 5/ 116 — 1 (West 1992)).) In Enoch, the supreme court relied upon this emphasized language in reaching its decision that a post-trial motion for a new trial is clearly mandated by statute. “The requirement for a written post-trial motion is statutory, and the statute requires that a written motion for a new trial shall be filed by the defendant.” (Emphasis in original.) Enoch, 122 Ill. 2d at 187, 522 N.E.2d at 1130.
Similarly, in Wilk, the supreme court construed Supreme Court Rule 604(d) (107 Ill. 2d R. 604(d)), which governs appeals from judgments entered on a plea of guilty. Rule 604(d) at that time stated: “No appeal from a judgment entered upon a plea of guilty shall be taken unless the defendant *** files in the trial court a motion to withdraw his plea of guilty and vacate the judgment.” (107 Ill. 2d R. 604(d).) Wilk held that Rule 604(d) “establishes a condition precedent for an appeal from a defendant’s plea of guilty.” (People v. Wilk (1988), 124 Ill. 2d 93, 105, 529 N.E.2d 218, 222; see also People v. Wallace (1991), 143 Ill. 2d 59, 570 N.E.2d 334.) No similar condition precedent is established by the language of section 5 — 8—1(c).
While it may be desirable for a defendant to file a motion to reduce sentence in the trial court, particularly if, as with the Southern Illinois Enforcement Group issue here, the motion raises an easily correctable error in the sentencing scheme, section 5 — 8—1(c) does not make the failure to file the motion either a jurisdictional defect or a waiver of the defendant’s right to appeal. Macke takes the position that requiring the motion will promote judicial economy and finality of judgments in all cases. While motions to reduce sentences will promote judicial efficiency in many cases, the fourth district’s conclusion that the opposite may result in some cases also has merit. People v. Turner (4th Dist. 1992), 233 Ill. App. 3d 449, 456, 599 N.E.2d 104, 109-10 (duplicative motion to reduce sentence will not promote judicial economy but will prolong cases in the trial court, requiring additional effort by the parties and by the courts).
The appellate districts are split on Macke. The third and fourth districts have rejected it. (People v. Turner (4th Dist. 1992), 233 Ill. App. 3d 449, 599 N.E.2d 104; People v. Sims (3d Dist. 1992), 233 Ill. App. 3d 471, 599 N.E.2d 137; People v. Alvarado-Aguilar (3d Dist. 1993), 244 Ill. App. 3d 433, 613 N.E.2d 342.) The first and second districts have apparently adopted Macke. People v. Lewis (2d Dist. 1992), 235 Ill. App. 3d 1003, 602 N.E.2d 492, appeal allowed (1993), 148 Ill. 2d 649, 610 N.E.2d 1271; People v. Gomez (1st Dist. 1993), 247 Ill. App. 3d 68.
The second district, however, has not adhered to Macke in all cases. For example, while Lewis (235 Ill. App. 3d at 1006, 602 N.E.2d at 493) held that a defendant who fails to file a motion to reduce sentence waives the right to appeal the sentence, People v. Hess (1993), 241 Ill. App. 3d 276, 609 N.E.2d 371, People v. Spencer (1992), 229 Ill. App. 3d 1098, 595 N.E.2d 219, and People v. Lindsay (2d Dist. 1993), 247 Ill. App. 3d 518, 617 N.E.2d 389, acknowledged Macke but chose to reach the merits. In addition, the second district has clarified and limited its holding in Lewis in People v. Pfister (1993), 240 Ill. App. 3d 931, 608 N.E.2d 1230. Pfister held that Lewis was “limited to a finding that when appealing only the sentence after a trial on the merits, the failure to file a post-sentencing motion results in waiver.” (Pfister, 240 Ill. App. 3d at 936, 608 N.E.2d at 1232.) In so holding, the second district expressly rejected the following Macke analogy:
“ ‘Requiring a defendant to file a motion to reduce his sentence is similar to requiring a post-trial motion to preserve issues on appeal (Ill. Rev. Stat. 1989, ch. 38, par. 116 — 1(b)) and requiring a defendant who pleads guilty to move to withdraw that plea before appealing. (134 Ill. 2d R. 604(d).)’ ” (Emphasis in Pfister, 240 Ill. App. 3d at 934, 608 N.E.2d at 1233, quoting People v. Macke (1992), 224 Ill. App. 3d 815, 816, 587 N.E.2d 1113, 1114.)
The second district thus concluded that a motion to reduce sentence under section 5 — 8—1(c) is not a condition precedent to filing an appeal, but the failure to file such a motion could result in waiver. Pfister, 240 Ill. App. 3d at 935, 608 N.E.2d at 1233.
Similarly, the first district adopted Macke and cited Macke, Lewis, and Pfister but, because the supreme court was reviewing the issue, went on to consider the merits of the defendant’s appeal. People v. Gomez (1st Dist. 1993), 247 Ill. App. 3d 68.
In view of my conclusion that section 5 — 8—1(c) does not impose either a jurisdictional requirement or a waiver choice on the defendant, I would address the merits of defendant’s appeal.
Defendant first argues that his sentence is excessive and must be reduced to the minimum four-year prison term. In support of this argument, the defendant points out that he was convicted of the unlawful delivery of 5.2 grams of cocaine, just over the minimum amount (5 grams) for which probation is unavailable. (Ill. Rev. Stat. 1989, ch. 38, 1005 — 5—3(cX2)(D) (now 730 ILCS 5/5-5-3(cX2XD) (West 1992)).) He also contends that his minimal criminal history, his minor child, and his drug addiction were not adequately considered as mitigating circumstances.
The imposition of a sentence is a matter of judicial discretion, and absent an abuse of this discretion, the sentence of the trial court may not be altered upon review. (People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882, 883.) Defendant was convicted of the unlawful delivery of 5.2 grams of cocaine, a Class 1 felony. (Ill. Rev. Stat. 1989, ch. 56V2, par. 1401(cX2) (now 720 ILCS 570/401(cX2) (West 1992)).) Section 5 — 5—3(cX2)(D) of the Unified Code of Corrections requires the trial court to impose a sentence of not less than the minimum term of imprisonment. (Ill. Rev. Stat. 1989, ch. 38, par. 1005— 5 — 3(c)(2)(D) (now 730 ILCS 5/5-5-3(cX2)(D) (West 1992)).) The sentence for a Class 1 felony is a prison term not less than four years and not more than 15 years. (Ill. Rev. Stat. 1989, ch. 38, par. 1005— 8 — l(aX4) (now 730 ILCS 5/5 — 8—1(a)(4) (West 1992)).) Defendant’s eight-vear prison sentence is well within the statutory sentencing range. The record demonstrates that the trial court listened to arguments in aggravation and in mitigation and stated the factors it relied upon in sentencing. The trial judge specifically noted in aggravation that the evidence showed that the defendant was active in the drug-selling business and that he had two prior misdemeanor convictions. Defendant’s prior convictions were for criminal trespass to a vehicle and reckless conduct and unlawful use of weapons. In mitigation, the judge noted that the defendant intended no bodily harm to another. I conclude that the trial judge, who heard the evidence and observed the defendant at trial, did not abuse his discretion by sentencing the defendant to an eight-year prison term. See People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.
Nor did the trial judge abuse his discretion by imposing a $2,000 discretionary fine upon the defendant without first specifically determining whether the defendant had the ability to pay. A trial court’s decision to impose a fine as part of the defendant’s sentence is entitled to great deference and weight. (People v. Ivy (1985), 133 Ill. App. 3d 647, 656, 479 N.E.2d 399, 405-06.) A specific finding of an ability to pay is not necessary where such a finding is implicit in the imposition of the fine because the trial court is aware of facts that support its determination. (Ivy, 133 Ill. App. 3d at 656, 479 N.E.2d at 405.) Here, the record reveals that the defendant twice claimed he was employed. In his motion to reduce bond he alleged he was employed part-time with his uncle. During the presentence investigation, he also claimed he was employed prior to his conviction. In addition, no specific time frame or method of payment for this fine was imposed by the court. In light of these facts, I conclude the trial judge did not abuse his discretion by imposing a $2,000 fine on the defendant without first specifically determining whether he has the ability to pay.
I agree with the majority’s discussion of the restitution to the Southern Illinois Drug Enforcement Agency. On the issue of the 147 days’ credit, the State concedes that defendant is entitled to the credit, and I agree with the majority’s modification of the fine.
The defendant’s final argument is that he was denied his constitutional right to effective assistance of counsel because his trial counsel failed to file a motion to reduce sentence as required by People v. Macke (1992), 224 Ill. App. 3d 815, 587 N.E.2d 1113. While I do not agree with Macke, I would agree with the majority’s disposition of this issue.