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People v. Agnew

OPINION FILED JANUARY 23, 1985.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,

v.

MICKEY D. AGNEW, APPELLANT.



Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Coles County, the Hon. Paul C. Komada, Judge, presiding.

JUSTICE WARD DELIVERED THE OPINION OF THE COURT:

The defendant, Mickey Agnew, was convicted of armed robbery after a jury trial in the circuit court of Coles County and was sentenced to eight years' imprisonment. The appellate court affirmed the conviction. (108 Ill. App.3d 79.) We granted the defendant leave to appeal and subsequently affirmed the judgment of the appellate court. (97 Ill.2d 354.) Thereafter the State's Attorney's Appellate Service Commission filed a motion in the appellate court, asking the court to assess a fee in favor of the State's Attorney of $75 against the defendant, to cover the appeal, $50 of which was to be for defending against the appeal and $25 for oral argument. The defendant objected to the assessment of the $25 fee for oral argument, but the appellate court overruled the objection and entered an order of assessment for $75. We granted the defendant leave to appeal under Rule 315 (87 Ill.2d R. 315).

The State bottoms its claim for fees on statutory provisions. The criminal cost 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 prosecution." (Ill. Rev. Stat. 1981, 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 Court * * *, $50.

For each day actually employed in the trial of a case, $25; in which case the court before whom the case is tried shall make an order specifying the number of days for which a per diem shall be allowed." Ill. Rev. Stat. 1981, ch. 53, par. 8.

The defendant concedes that the assessment of the $50 fee for the appeal to the appellate court was proper, but he argues that the $25 per diem fee, provided under section 8 for each day the State's Attorney is employed in the trial of a case, should be allowed only for each day of actual trial in the circuit court. The defendant cites several decisions of the appellate court which, supporting his interpretation of section 8, denied the requests by the State for the $25 fee for oral argument. People v. Reese (1984), 121 Ill. App.3d 977, 991; People v. Grayson (1983), 119 Ill. App.3d 252, 263; People v. Wolsk (1983), 118 Ill. App.3d 112, 121; People v. Hall (1983), 117 Ill. App.3d 788, 806.

In People v. Nicholls (1978), 71 Ill.2d 166, the issue here was before this court. The defendant contended that the State's Attorney could not recover the per diem fee for oral argument on appeal. The statute involved was the one we consider today, except the fee then was $10. (See Pub. Act 81-507, 1979 Ill. Laws 2121.) The court, in declaring that the State's Attorney was entitled to a fee for oral argument on the appeal, said:

"As the State notes, the provisions [in section 8] for per diem fees for trials and habeas corpus hearings are separated from the provisions for conviction fees and appeal fees. We believe that the per diem allowance, not being limited to the circuit court proceedings, may be reasonably construed as also applying to oral argument in the appellate court." (71 Ill.2d 166, 179.)

The court denied the allowance in Nicholls, however, because the appellate court had not stated the number of days for which the per diem should have been allowed. 71 Ill.2d 166, 179.

As the People note, "trial" is not a word of rigid definition. To illustrate, in People v. Drymalski (1961), 22 Ill.2d 347, this court, citing People ...


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