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02/20/97 PEOPLE STATE ILLINOIS v. ROBERT LOUIS

February 20, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,
v.
ROBERT LOUIS WOODARD, APPELLEE.



The Honorable Justice Freeman delivered the opinion of the court. Justice Miller, dissenting.

The opinion of the court was delivered by: Freeman

The Honorable Justice FREEMAN delivered the opinion of the court:

The single issue presented by this appeal is whether a defendant may be allowed on appeal the per diem monetary credit, for incarceration prior to sentencing, provided under section 110-14 of the Code of Criminal Procedure of 1963 (725 ILCS 5/110-14 (West 1994)). We hold that the credit may be allowed on appeal.

BACKGROUND

On October 24, 1993, defendant, Robert Louis Woodard, led police on a high-speed chase along an interstate highway in his pickup truck following a failure to pay for gasoline at a service station. After police took defendant into custody, they discovered cocaine in his shirt pocket. Defendant also spat on a police officer.

On January 26, 1994, defendant was convicted by a Pulaski County jury of aggravated battery and unlawful possession of a controlled substance. 720 ILCS 5/12-4(b)(6), 570/402 (West 1992). On March 17, 1994, defendant was sentenced to concurrent prison terms of three years for aggravated battery and one year for the drug offense. Defendant was also ordered to pay fees and costs and was assessed a $500 fine. A credit was applied by the trial court reducing defendant's period of imprisonment by 114 days, the number of days he served in custody prior to sentencing. Defendant did not request, and the court did not order, that a per diem credit for time in custody prior to sentencing, pursuant to section 110-14, be applied against his $500 fine. 725 ILCS 5/110-14 (West 1994).

On appeal, defendant claimed, inter alia, that he was entitled to the per diem credit allowed under section 110-14. The State maintained that defendant had waived the credit by failing to apply for it. The appellate court noted that, despite the elimination of the clerk notification requirement from section 110-14 by amendment in 1994, nothing within the record indicated that defendant had been notified of the credit at the trial level. 276 Ill. App. 3d 242, 658 N.E.2d 55, 212 Ill. Dec. 878. The court declined to follow People v. Toolate, 274 Ill. App. 3d 408, 654 N.E.2d 605 (1995), which held that the issue of a section 110-14 credit was waived on appeal based on a defendant's failure to raise the issue in the trial court at sentencing or in a post-trial motion. See also People v. Hillsman, 281 Ill. App. 3d 895, 896, 217 Ill. Dec. 617, 667 N.E.2d 706 (1996). Reasoning that it was "inherently unfair" to make defendant keep records of the time he was incarcerated, the court also expressed hesitancy to hold that a statutory right had been waived, absent an affirmative showing of waiver on the record. The court affirmed defendant's conviction and sentence, and modified the judgment, pursuant to section 110-14, to reflect a $500 credit against the $500 fine for the period of defendant's incarceration prior to sentencing. 276 Ill. App. 3d at 248.

We granted leave to appeal (155 Ill. 2d R. 315). Appellant subsequently elected to supplement its petition with its appellate brief pursuant to Supreme Court Rule 315(g) (155 Ill. 2d R. 315(g)). We now affirm.

SECTION 110-14

Section 110-14 of the Code of Criminal Procedure of 1963 originally provided:

"Any person incarcerated on a bailable offense who does not supply bail and against whom a fine is levied on conviction of such offense shall be allowed a credit of $5 for each day so incarcerated prior to conviction except that in no case shall the amount so allowed or credited exceed the amount of the fine." (Emphasis added.) Ill. Rev. Stat. 1965, ch. 38, par. 110-14.

Effective October 1, 1977, the legislature amended the provision to add (1) the phrase "upon application of defendant," and (2) the requirement that the circuit court clerk give written notice of the credit to an eligible defendant at the time of his conviction. Section 110-14 thus provided:

"Any person incarcerated on a bailable offense who does not supply bail and against whom a fine is levied on conviction of such offense shall be allowed a credit of $5 for each day so incarcerated upon application of the defendant. The clerk of the court shall notify the defendant in writing of this provision of the Act at the time he is convicted. However, in no case shall the amount so allowed or credited exceed the amount of the fine." (Emphasis added.) Ill. Rev. Stat. 1977, ch. 38, par. 110-14.

Effective January 1, 1994, the legislature again amended section 110-14 by eliminating the language concerning clerk notification, but retaining the language concerning application of the defendant. Section 110-14 thus provided:

"Any person incarcerated on a bailable offense who does not supply bail and against whom a fine is levied on conviction of such offense shall be allowed a credit of $5 for each day so incarcerated upon application of the defendant. However, in no case shall the amount so allowed or credited exceed the amount of the fine." (Emphasis added.) 725 ILCS 5/110-14 (West 1994).

Defendant does not dispute that the 1994 amended version of section 110-14 governs consideration of any credit in this case. When a change of law merely affects the remedy or law of procedure, all rights of action will be enforceable under the new procedure, without regard to whether they accrued before or after such change of law and without regard to whether or not the action has been instituted, unless there is a savings clause as to existing litigation. Maiter v. Chicago Board of Education, 82 Ill. 2d 373, 390, 47 Ill. Dec. 721, 415 N.E.2d 1034 (1980).

It is clear from the statute that any change in law resulting from the 1994 amendment, which eliminated the clerk notification requirement, could only have affected remedy or procedure and not the substantive law. See Rivard v. Chicago Fire Fighters Union, Local No. 2, 122 Ill. 2d 303, 310, 119 Ill. Dec. 336, 522 N.E.2d 1195 (1988) (procedure embraces pleading, evidence and practice, which are legal rules directing course of proceedings to bring parties into court and course of court afterwards). Further, the 1994 amendment became effective without a savings clause. Accordingly, we find that although the instant criminal acts occurred on October 26, 1993, the 1994 amended version of section 110-14 in effect on January 26, 1994, the date of defendant's conviction, governs consideration of any credit in this case.

ANALYSIS

The State claims that the appellate court erred in this case, by awarding the per diem credit, because section 110-14 no longer includes the clerk notification requirement which previously provided the foundation for reviewing courts to excuse on appeal a defendant's failure to apply for the credit at the trial level. The State claims that the court has elsewhere correctly recognized the intended effect of the 1994 amendment which eliminated the clerk notification requirement. See Toolate, 274 Ill. App. 3d 408, 211 Ill. Dec. 143, 654 N.E.2d 605.

The State takes the position that, under section 110-4, since amendment in 1977, a defendant must apply for the per diem credit at the trial level as a precondition to the statutory right to the credit or else forfeit the right. Section 110-14 thus confers only a limited statutory right to the credit that cannot be recognized as a matter of course on appeal. The State contends that the statutory evolution of section 110-4, legislative debates, and the provision's inclusion among bail provisions shows that the opportunity for obtaining the credit has always been limited to the trial level. During the period between the 1977 and 1994 amendments, when the provision included the clerk notification language, there existed a foundation for reviewing courts to excuse a defendant's failure to timely apply at the trial level. People v. Winkler, 77 Ill. App. 3d 35, 32 Ill. Dec. 441, 395 N.E.2d 671 (1979) (allowing credit on appeal, though defendant failed to apply for credit upon conviction in the trial court, where no indication of clerk notification as required by statute). According to the State, with the elimination of the clerk notification requirement by amendment in 1994, any basis for excusing a defendant's failure to apply for the credit at the trial level ceased to exist. The 1994 amendment, as shown by legislative debates, did not affect that part of section 110-14 requiring that a defendant apply at the trial level as a precondition to receiving the credit.

Defendant maintains that despite the 1994 amendment eliminating the clerk notification requirement, the appellate panel here correctly found that the defendant's failure to apply for the credit in the trial court did not result in a waiver of the statutory right to the credit on appeal. Defendant points out that other appellate decisions have also taken this position. See People v. Scott, 277 Ill. App. 3d 565, 566-67, 214 Ill. Dec. 367, 660 N.E.2d 1316 (1996); People v. Nixon, 278 Ill. App. 3d 453, 460, 215 Ill. Dec. 316, 663 N.E.2d 66 (1996).

According to defendant, under any amended version of section 110-4, a defendant is not limited to applying for the per diem credit only at the trial level. Defendant maintains that the plain language and meaning of section 110-14 reveals no legislative intent to limit a defendant's opportunity for seeking the credit to the trial level, nor any legislative intent that the failure to apply for the credit in the trial court results in forfeiture of the credit. Defendant argues that the State's interpretation of section 110-14 and the effect of the 1993 amendment is contrary to legislative practice and inconsistent with statutory construction principles. Defendant points out that the appellate court has consistently declined to find waiver of the credit and if the legislature had intended to discontinue this practice by amending the provision in 1993, it would ...


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