Appeal from the Circuit Court of Macon County; the Hon. Warren
JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 7, 1983.
Reimbursement for court-appointed attorney fees.
Was it properly applied here?
Bramlett challenges a judgment for reimbursement for attorney fees entered against him pursuant to section 113-3.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 113-3.1). Both the validity of the statute and the propriety of the particular judgment are placed in issue.
We uphold the validity of section 113-3.1, but reverse the judgment for the reasons stated herein.
Bramlett was charged by complaint with the offense of driving with a suspended license. The public defender was appointed to represent him. Bramlett pleaded not guilty and demanded a jury trial. But the jury announced that it could not reach a verdict, and the trial judge declared a mistrial. On the State's motion, the charge was dismissed and the trial court entered judgment against Bramlett in the amount of $462.50 as reimbursement for the services of the public defender, pursuant to section 113-3.1.
Bramlett raises several issues in challenge to the judgment for reimbursement. First, he asserts that section 113-3.1 violates due process because it applies to defendants who have not been convicted, it does not require prior notice to a defendant that he may be compelled to pay for the services of the public defender, and it does not require a finding that a defendant is able to pay for said services. Second, he argues that the judgment for reimbursement entered in this cause constituted an abuse of discretion in that the evidence showed he had no ability to pay reimbursement, and the amount of reimbursement was based upon an arbitrary hourly rate rather than upon the county's actual cost of providing representation by the public defender. Third, he contends that the judgment was not authorized by terms of section 113-3.1, because the decree was not preceded by a payment order.
• 1-3 The constitutional issues raised by Bramlett in the instant appeal were recently addressed and resolved by this court in People v. Kelleher (1983), 116 Ill. App.3d 186, 452 N.E.2d 143. Section 113-3.1 authorizes the trial court to require criminal defendants, who have been appointed counsel because of their indigency, to pay a reasonable sum to reimburse the county for some or all of the costs incurred in furnishing counsel. The statute does not limit the availability of recoupment to cases in which a defendant has been convicted. In Kelleher, an order of recoupment was entered against a defendant who had been acquitted. An issue on appeal was whether this application of the statute violated due process. This court held that it does not offend due process to require an acquitted defendant to reimburse the court for the costs of his legal representation, but merely puts indigents and non-indigents who are acquitted on the same basis. In the present case, Bramlett's trial resulted in a mistrial rather than acquittal, but the rationale set forth in Kelleher applies with equal force. We conclude that the application of section 113-3.1 to Bramlett, whose trial terminated in a declaration of mistrial, did not work a deprivation of due process.
• 4, 5 The second aspect of defendant's constitutional challenge focuses on the statute's alleged failure to require prior notice regarding the potential for recoupment. In Kelleher, as in the present case, the defendant argued that section 113-3.1 was constitutionally defective because it failed to require prior notice to a defendant that reimbursement for his legal representation could be ordered. There is no question, of course, that due process requires notice and hearing prior to any deprivation of property. (Fuentes v. Shevin (1972), 407 U.S. 67, 32 L.Ed.2d 556, 92 S.Ct. 1983.) In Kelleher, we held that section 113-3.1 satisfies this constitutional mandate, however, because it directs that a hearing be held before the court orders appropriation of the property by authorizing recoupment. (See Ill. Rev. Stat. 1981, ch. 38, pars. 113-3.1(a), (c).) On the question of notice, ...