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10/17/97 PEOPLE STATE ILLINOIS v. GENEALYN LOVE

October 17, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,
v.
GENEALYN LOVE, APPELLEE.



Petition for Leave to Appeal from the Circuit Court of Kankakee County. TRIAL JUDGE: Hon. John F. Michela, CASE NUMBERS: AC3-95-0937, TR94CF712.

The Honorable Justice Bilandic delivered the opinion of the court.

The opinion of the court was delivered by: Bilandic

The Honorable Justice BILANDIC delivered the opinion of the court:

Section 113--3.1 of the Code of Criminal Procedure of 1963 allows circuit courts to order defendants who receive the services of appointed counsel to pay reimbursement for those services. 725 ILCS 5/113--3.1 (West 1994). This appeal concerns the appropriate procedures to be followed in ordering reimbursement under section 113--3.1.

FACTS

Defendant, Genealyn Love, was charged by indictment in the circuit court of Kankakee County with one count of aggravated battery with a firearm and one count of unlawful possession of a weapon by a felon. At his initial court appearance on January 19, 1995, the trial court questioned defendant about his financial resources. Defendant stated that he was unemployed and had no assets other than a 1983 Ford Escort automobile. The trial court therefore appointed the Kankakee County public defender to represent defendant. The trial court also set bail for defendant's release at $25,000. Defendant filed a motion for reduction of bail or release on a recognizance bond. At a bearing on the motion, defendant testified that he was 23 years old, living with his grandfather, and was unable to acquire any money to post a bail bond. The trial court denied defendant's motion and defendant remained in custody.

On February 6, 1995, a bail bond in the amount of $2,500 was posted to secure defendant's release from custody. The bond indicated that the money was posted by Mary Terrell. The bond contained a notice, signed by Terrell, indicating that if defendant failed to comply with the conditions of the bail bond, the money posted would be forfeited, and that even if defendant complied with the bond, the money posted may be used to pay fines, costs or restitution.

On March 7, 1995, Mary Terrell, through her attorney, filed a motion to exonerate bond in which she asked that the bond money she had posted be returned to her. Counsel representing Terrell was present in court on that date to argue the motion. Terrell's counsel stated that Terrell had "changed her mind" about posting the bond money. The trial court denied the motion.

After a bench trial, defendant was found guilty of unlawful possession of a weapon by a felon. The trial court acquitted defendant of aggravated battery with a firearm, but found him guilty of the lesser included offense of reckless conduct.

A presentence investigation of defendant was conducted. That investigation revealed that defendant was currently unemployed and that he had worked for two months at a factory in 1994 through a temporary service. As to defendant's "financial status," the report indicated that defendant's grandparents "provide" for him and that defendant owed money for medical bills. After a brief sentencing hearing, the trial court sentenced defendant to a five-year prison term for the weapons conviction and a one-year term for the reckless conduct conviction. At the same time, the court sua sponte ordered defendant to pay $1,000 for the services of the public defender, to be withheld from the bail bond posted on defendant's behalf. The court did not hold a hearing on the issue of reimbursement.

Defendant appealed his sentences and the reimbursement order to the appellate court. The appellate court affirmed the sentence for unlawful possession of a weapon by a felon and reduced the sentence for reckless conduct from one year to 364 days. The appellate court also determined that the reimbursement order was improperly entered because the trial court did not hold a hearing regarding defendant's ability to pay such reimbursement, as mandated by statute. The appellate court therefore vacated the reimbursement order and remanded to the trial court for a hearing. No. 3-95-0937 (unpublished order under Supreme Court Rule 23). We granted the State's petition for leave to appeal. 155 Ill. 2d R. 315. We now affirm the appellate court.

ANALYSIS

In keeping with well-settled constitutional mandates, our Code of Criminal Procedure requires that criminal defendants who cannot afford a lawyer be provided with appointed counsel. See Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792 (1963); People v. Cook, 81 Ill. 2d 176, 179, 40 Ill. Dec. 825, 407 N.E.2d 56 (1980). Under section 113--3 of the Code, if the trial court determines that a defendant is indigent and desires counsel, an attorney, generally the public defender, must be appointed to represent the defendant. 725 ILCS 5/113--3(b) (West 1994). The Code also provides a mechanism under which a defendant who receives the services of appointed counsel may be required to reimburse the county or state for such services. Section 113--3.1 provides, in pertinent part, as follows:

"(a) Whenever under either Section 113--3 of this Code or Rule 607 of the Illinois Supreme Court 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 ...


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