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.