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03/10/88 the People of the State of v. James S. Lusietto

March 10, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

JAMES S. LUSIETTO, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

521 N.E.2d 174, 167 Ill. App. 3d 251, 118 Ill. Dec. 106 1988.IL.343

Appeal from the Circuit Court of La Salle County; the Hon. Fred P. Wagner, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE BARRY delivered the opinion of the court. SCOTT, J., concurs. JUSTICE HEIPLE, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BARRY

Defendant James S. Lusietto entered a plea of guilty in the circuit court of La Salle County to the offense of unlawful delivery of a controlled substance, one of three counts in the indictment returned against defendant. Before accepting the plea, the trial court determined that the factual basis for the offense was as follows: Various police officers and technicians would testify that defendant knowingly and unlawfully delivered 30 or more grams of a substance containing cocaine to Daniel Burke on December 6, 1985.

The evidence at the sentencing hearing indicated that defendant delivered 2.5 ounces of a substance containing cocaine to Burke, who was a police informant, at a price of $1,900 per ounce. A police officer testified that cocaine is generally delivered "on the street" in grams and that the "street value" of a gram of cocaine is approximately $100. The trial court imposed a fine of $8,290 on defendant which was computed by converting the three ounces seized from defendant (2 1/2 ounces actually delivered and another one-half discovered in defendant's home) to grams and multiplying by $100. One ounce is 28.3 grams; three ounces would be 84.9 grams. At $100 per gram, the fine imposed represents 82.9 grams, which is slightly less than three ounces.

Defendant first contends that the fine is excessive. Section 5-9-1.1 of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005-9-1.1) requires a fine "at not less than the full street value of the . . . controlled substances seized." The same section further provides:

"'Street value' shall be determined by the court on the basis of testimony of law enforcement personnel and the defendant as to the amount seized and such testimony as may be required by the court as to the current street value of the . . . controlled substances seized." (Ill. Rev. Stat. 1985, ch. 38, par. 1005-9-1.1.)

Defendant insists that the sale price of $1,900 per ounce should have been used to determine the street value of the cocaine which was involved in this case and consequently that a fine of $4,750 should have been imposed. He relies upon People v. Beavers (1986), 141 Ill. App. 3d 790, 491 N.E.2d 438, appeal denied (1986), 112 Ill. 2d 581, where this court reduced a fine on the ground that the sale price of $100 per gram should have been used to compute the street value. We believe that People v. Beavers is distinguishable on its facts since, in that case, the witness who testified that the street value was $400 per gram had stated that he never paid more than $100 per gram.

The controlling case here is People v. Pilcher (1986), 147 Ill. App. 3d 193, 497 N.E.2d 1360, appeal denied (1987), 113 Ill. 2d 566, where we held that the evidence supported the imposition of a fine of $990 for 3.3 grams of cocaine even though the actual sale price in that case was only $300. Additional evidence there indicated that the substance involved in the sale was 75% cocaine and that normally the average purity of cocaine sold on the streets is 25%. Thus, the fine imposed by the trial court was not contrary to the evidence. In the case at bar, the evidence indicates that defendant sold a large package of cocaine that would be sold on the street in quantities of one-half or one gram and would be sold at a price of $100 per gram. The price of the cocaine sold to Burke was that of a wholesale transaction, while the fine was assessed on the basis of the "street value" (i.e., the price charged the consumer) as required by the statute. We conclude that the trial court did not err in finding the street value to be $100 per gram for purposes of the mandatory fine.

Defendant also contends that the trial court erred in calculating the fine on the basis of the one-half ounce of cocaine found in his home in Bureau County in addition to the cocaine involved in the sale. The record shows that the one-half ounce seized in Bureau County was the subject of a separate prosecution. Defendant cannot be sentenced by the courts of two different counties for possession of the same one-half ounce of cocaine. Calculating the correct fine at $100 per gram for 70.75 grams (2 1/2 ounces), we determine that defendant should have been assessed $7,075 as a fine. Accordingly, the fine should be reduced from $8,290 to $7,075.

Finally, defendant asks that his fine be reduced to reflect a credit of $5 per day for the 21 days he spent in jail without posting bond before trial. Section 110-14 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 110-14) provides for $5 per-day credit for incarceration on a bailable offense. The State argues that defendant was given credit for time served against his jail sentence and that to allow additional credit against his fine would amount to a double credit. Some courts have adopted that reasoning. (E.g., People v. Holzhauer (1986), 144 Ill. App. 3d 153, 494 N.E.2d 272, appeal allowed (1986), 112 Ill. 2d 585; People v. Love (1986), 140 Ill. App. 3d 651, 489 N.E.2d 393.) However, this court has ruled that a defendant is entitled to monetary credit as well as credit for time served. (People v. Pilcher (1986), 147 Ill. App. 3d 193, 497 N.E.2d 1360.) Following our decision in Pilcher, we hold that defendant is entitled to a credit of $105 against the fine imposed. This further reduction brings the proper figure for defendant's fine to $6,970.

The State asks that we remand with instructions to increase the fine because the trial court apparently made a mathematical error in computing the fine at $8,290 when the correct amount for three ounces would be $8,490. Having determined that a recalculation is necessary, and ...


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