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People v. Morrison

OPINION FILED JANUARY 13, 1983.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

CHARLES MORRISON, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Tazewell County; the Hon. Robert E. Hunt, Judge, presiding.

JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:

Following a bench trial in the circuit court of Tazewell County, the defendant, Charles Morrison, was convicted of driving while under the influence of intoxicating liquor. (Ill. Rev. Stat. 1979, ch. 95 1/2, par. 11-501(a).) A sentencing hearing was held on April 30, 1982. The defendant was sentenced to one year of probation upon the conditions that he serve a 30-day jail term, pay a $350 fine, and participate in a treatment program for his alcohol problem. The only issue raised by the defendant in his appeal is that the trial court improperly assessed a fine where the facts do not support a finding that the defendant had the financial resources and future ability to pay the fine.

A bystander's report was filed in this court relating to the proceedings during the sentencing hearing. (87 Ill.2d R. 323(c).) At the time of the hearing, the defendant was 52 years old. He had been married for 31 years and had five children. Two of his sons, ages 20 and 21, lived at home while they attended college. The defendant's wife was employed as a secretary at Mackinaw Valley Installation. The defendant was a carpenter but had been unemployed since August 1981. He was receiving unemployment compensation. The defendant's family were dependent upon him for support.

The incident resulting in the defendant's D.W.I. conviction also resulted in an automobile accident. Damages to the other vehicle totaled $3,800. The defendant did not have insurance, but was paying the car owner and the insurance company $50 per month as restitution. No other information regarding the financial status of the defendant was presented to the trial court.

• 1 When a trial court assesses a fine against a defendant, it must determine that the defendant has the financial resources and future ability to pay the fine. (Ill. Rev. Stat. 1981, ch. 38, par. 1005-9-1(d)(1).) A determination that a defendant has the ability to pay is implicit in the imposition of a fine where the trial court is aware of facts in the record which would support such a determination. People v. Bishop (1980), 81 Ill. App.3d 521, 401 N.E.2d 648.

In the instant case, the trial court imposed a $350 fine. The State argues that the record supports a finding that the defendant has the financial resources and the future ability to pay the fine. It supports its proposition by pointing out that the defendant did post a cash bond of $100 which was to be applied toward the fine. Also, the fact that the defendant qualified for the appointment of the appellate defender did not preclude the court from finding that the defendant had the resources to pay a fine. (People v. Mitchell (1977), 52 Ill. App.3d 745, 367 N.E.2d 1351.) The defendant, though unemployed at the time of sentencing, was receiving unemployment compensation. He was an experienced carpenter who would likely find employment in the near future. Besides these factors, the defendant's wife was also employed.

• 2 The ability of a defendant to post a cash bail does not necessarily indicate a defendant's financial ability to pay restitution or reimbursement. The money used for bail may be borrowed or paid by relatives or friends. (People v. Johnson (1982), 106 Ill. App.3d 171.) The same reasoning applies in the case of a fine. Merely because the defendant in the case at bar posted $100 cash bond does not indicate that he had the financial resources to pay a fine.

• 3 The facts before the trial court in the instant case were insufficient to support a determination that the defendant had the financial resources and the future ability to pay a $350 fine. The defendant was receiving unemployment compensation (People v. Martin (1982), 110 Ill. App.3d 449), but it was not indicated what the amount of those benefits were. There was no information on the amount of expenses incurred by the defendant. It was not made clear whether the defendant's wife contributed her income to the household or how much that income was. The trial court was not informed about the defendant's educational background or whether he had other marketable skills besides carpentry. There was no information concerning any property or other sources of income available to the defendant. Overall, there were insufficient facts available to the trial court to determine the issue of imposition of a fine and the amount. Therefore, the fine is vacated and the cause is remanded for the limited purpose of conducting a hearing to determine the defendant's ability to pay the fine, and the amount of the fine.

Based on the foregoing, the sentence placing defendant on one year probation, with 30 days to be spent in jail, and with participation in a treatment program for his alcohol problem, is affirmed. The sole issue to be determined upon remandment is the ability of defendant to pay a fine, and to fix the amount thereof.

The sentence of the circuit court of Tazewell County is affirmed in all respects except for the issue of imposition and the amount of a fine to be determined at a hearing on remandment.

Affirmed and remanded in part.

STOUDER, P.J., concurs.

JUSTICE HEIPLE dissenting:

This is just the sort of case that has brought appellate courts> into disrepute. After being convicted of drunken driving, the defendant, Charles Morrison, was placed on one year of probation, sentenced to 30 days in jail, ordered to participate in ...


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