Appeal from the Appellate Court for the Fifth District; heard
in that court on appeal from the Circuit Court of Madison County,
the Hon. Michael M. Kinney, Judge, presiding.
MR. JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:
Defendant, Ernest Nicholls, was found guilty of murder and sentenced to 100 to 150 years in the penitentiary. On direct appeal to this court, his conviction was affirmed (People v. Nicholls (1970), 44 Ill.2d 533). His petition for post-conviction relief was denied by the circuit court of Madison County. He appealed, in forma pauperis, and the Appellate Court for the Fifth District affirmed the denial (People v. Nicholls (1975), 33 Ill. App.3d 650). Shortly thereafter the State filed petitions in the Appellate Court for the Fifth District in 28 criminal cases, including that of defendant Nicholls, in which the defendants had been unsuccessful in their appeals in that appellate court. The petitions sought judgment for State's Attorneys' fees of $60 in each case ($50 for defending the appeal and $10 per diem fee) (Ill. Rev. Stat. 1975, ch. 53, par. 8). All 28 petitions were consolidated for hearing and disposition. In a supplemental opinion the appellate court held that the State is entitled to have the State's Attorneys' fees assessed against unsuccessful criminal appellants, including indigents. One justice dissented. People v. Nicholls (1977), 45 Ill. App.3d 312.
All of the issues decided by the appellate court and argued in this court were involved in the 28 consolidated cases. However, the supplemental opinion directed that it be filed only in the defendant Nicholls' case and that similar orders be entered in the other cases. Review in this court has been sought only by Nicholls. Due to the nature of the offense of which he was convicted and the sentence imposed, it is highly unlikely that any questions concerning satisfaction of a judgment for costs from bail is relevant to this case. Also, certain other issues raised are not relevant here. However, these issues are relevant to some of the other 27 cases that were considered with the Nicholls case in the appellate court, and further proceedings in those cases have been stayed pending our disposition of this case. We will therefore consider all of the issues that have been raised on appeal.
The issues which the defendant has presented to this court are:
(1) Whether the State's Attorney's fee for defending an unsuccessful appeal by a convicted criminal defendant may be assessed as costs;
(2) Whether a bail deposit posted for an accused may be used to satisfy the obligation for the State's Attorney's fee, notwithstanding the defendant's alleged indigency;
(3) Whether the State's Attorney is entitled to his fee when a convicted defendant is partially successful on appeal.
Several statutory provisions are relevant. The criminal costs statute provides:
"When any person is convicted of an offense under any statute * * * the court shall give judgment that the offender pay the costs of the prosecution." (Ill. Rev. Stat. 1975, ch. 38, par. 180-3.)
Section 8 of "An Act concerning fees and salaries * * *" provides:
"State's attorneys shall be entitled to the following fees:
For each case of appeal taken * * * to the Supreme or Appellate ...