Appeal from the Circuit Court of Lake County. No. 08--CF--1692 Honorable Victoria A. Rossetti, Judge, Presiding.
The opinion of the court was delivered by: Justice McLAREN
JUSTICE McLAREN delivered the opinion of the court: Joseph R. Dalton appeals from his conviction and sentence for one count of predatory criminal sexual assault of a child (720 ILCS 5/12--14.1(a)(1) (West 2008)). He contends that the following fines and fees must be vacated: (1) a public defender fee; (2) a pretrial bond supervision fee; and (3) assessments made under section 5--9--1.15 of the Unified Code of Corrections (Unified Code) (730 ILCS 5/5--9--1.15 (West 2008)) for the circuit court clerk operation and administrative fund, the State's Attorney, and a sex offender investigation fund fine. The State agrees that the public defender fee, pretrial bond supervision fee, and sex offender investigation fund fine should be vacated. However, the State contends that the assessments for the circuit court clerk and the State's Attorney were appropriately assessed fees. We agree with the State. Accordingly, we affirm in part and vacate in part.
On April 28, 2008, Dalton was charged with predatory criminal sexual assault of a child in connection with his sexual contact with a child on April 18, 2008. On April 29, 2008, bond was set at $350,000, with an order that he be supervised by pretrial bond services and pay a $75 bond supervision fee. However, Dalton never posted bond.
Dalton pleaded guilty and was sentenced to incarceration, with a life term of mandatory supervised release. The court did not indicate whether any fines or fees were to be assessed. The clerk of the court assessed the fines and fees at issue. Dalton's counsel filed a motion to reconsider the sentence that did not raise issues concerning fines and fees and did not include a certificate of compliance as required by Supreme Court Rule 604(d). 210 Ill. 2d R. 604(d). That motion was denied, and Dalton appealed. We summarily vacated the denial of the motion to reconsider sentence and remanded for a new hearing and compliance with Rule 604(d). People v. Dalton, No. 2--08--1008 (2009) (unpublished order under Supreme Court Rule 23). On remand, the motion was again denied. Dalton appeals.
Dalton contends that the imposition of the public defender fee without consideration by the trial court of his ability to pay was plain error and must be vacated. The State agrees that the fee was wrongly imposed without a hearing and further states that it is not requesting a remand to determine Dalton's ability to pay.
Section 113--3.1(a) of the Code of Criminal Procedure of 1963 (Code) provides:
"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 the State's Attorney at any time after the appointment of counsel but no later than 90 days after the entry of a final order disposing of the case at the trial level." 725 ILCS 5/113--3.1(a) (West 2008).
Section 113--3.1 requires the trial court to conduct a hearing into a defendant's financial circumstances and find an ability to pay before it may order the defendant to pay reimbursement for appointed counsel. People v. Love, 177 Ill. 2d 550, 563 (1997). The hearing is required even where a cash bail bond has been posted, because the existence of a bond is not conclusive evidence of an ability to pay. Love, 177 Ill. 2d at 560-63. "The hearing must focus on the foreseeable ability of the defendant to pay reimbursement as well as the costs of the representation provided." Love, 177 Ill. 2d at 563.
"The hearing must, at a minimum, provide defendant with notice that the trial court is considering imposing a payment order and give defendant an opportunity to present evidence of his ability to pay and other relevant circumstances." People v. Spotts, 305 Ill. App. 3d 702, 703-04 (1999). "Notice" includes informing the defendant of the court's intention to hold such a hearing, the action the court may take as a result of the hearing, and the opportunity the defendant will have to present evidence and be heard. Spotts, 305 Ill. App. 3d at 704. "Such a hearing is necessary to assure that an order entered under section 113--3.1 complies with due process." Spotts, 305 Ill. App. 3d at 704. Rules of forfeiture do not apply. Love, 177 Ill. 2d at 564.
Here, the clerk of the court could not impose the fee without notice and a hearing before the trial court. Normally, a remand would be appropriate to determine Dalton's ability to pay. See, e.g., Love, 177 Ill. 2d at 565; Spotts, 305 Ill. App. 3d at 705. Here, however, the State does not request a remand and asks that ...