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05/26/88 the People of the State of v. David H. Terry

May 26, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

DAVID H. TERRY, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

524 N.E.2d 685, 170 Ill. App. 3d 484, 120 Ill. Dec. 655 1988.IL.839

Appeal from the Circuit Court of De Witt County; the Hon. Donald R. Parkinson, Judge, presiding.

APPELLATE Judges:

JUSTICE KNECHT delivered the opinion of the court. McCULLOUGH and SPITZ, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KNECHT

Defendant was charged with the offense of criminal damage to property on June 16, 1987. Bail was set at $1,000 and defendant posted 10% of that amount as bond. An affidavit of assets and liabilities reported defendant was unemployed and married with two children. Defendant had no assets and reported a monthly liability of $175 for rent. Defendant indicated the bail bond money was borrowed. A notation in the affidavit indicates the trial Judge "told [defendant] about reimbursement." A jury acquitted defendant on August 19, 1987.

Following the acquittal, the trial court held a hearing to determine the amount defendant owed the county for the public defender's services. Defendant told the court he was unemployed and had been baby-sitting at home while his wife worked as a nurse's aide in a nursing home.

The trial lasted one day and the public defender estimated he had worked on the case approximately 12 to 14 hours in and out of court. Without further consideration, the trial court assessed defendant $400 to reimburse the county for court-appointed counsel. The cash bail bond posted by defendant was to be applied to the fee assessment. Because that money was borrowed, defense counsel objected, but was overruled.

When defendant filed a notice of appeal, the trial court considered his previous testimony and determined he had insufficient funds to retain counsel for purposes of appeal. Accordingly, the State appellate defender was appointed to represent defendant at the appellate level.

Section 113 -- 3.1 of the Code of Criminal Procedure of 1963 (Code) regulates payment for court-appointed counsel. In pertinent part the statute provides:

"(a) Whenever . . . the court appoints counsel to represent a defendant, the court may order the defendant to pay to the Clerk of the Circuit Court a reasonable sum to reimburse either the county or the State for such representation. In a hearing to determine the amount of the payment, the court shall consider the affidavit prepared by the defendant under Section 113 -- 3 of this Code and any other information pertaining to the defendant's financial circumstances which may be submitted by the parties. Such hearing shall be conducted on the court's own motion or on motion of the State's Attorney . . ..

(b) Any sum ordered paid under this Section may not exceed $500 for a defendant charged with a misdemeanor . . ..

(c) The method of any payment required under this Section shall be as specified by the Court. Any sum deposited as money bond with the Clerk of the Circuit Court under Section 110-7 of this Code may be used in the court's discretion in whole or in part to comply with any payment order entered in accordance with paragraph (a) of this Section. The court may give special consideration to the interests of relatives or other third parties who may have posted a money bond on the behalf of the defendant to secure his release." (Emphasis added.) Ill. Rev. Stat. 1985, ch. 38, pars. 113-3.1 (a), (b), (c).

Defendant argues the trial court erred in ordering him to pay the county $400 for the public defender's services because (1) he was given insufficient notice of the reimbursement proceeding, (2) there was no evidence presented of the county's cost to provide a public defender, and (3) the record does not show defendant had the ability to pay the attorney fees. ...


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