Appeal from the Circuit Court of the 9th Judicial Circuit, Honorable David L. Vancil, Judge, Presiding. Circuit No. 06-CF-100
The opinion of the court was delivered by: Justice Lytton
JUSTICE LYTTON delivered the judgment of the court, with opinion. Justice Holdridge specially concurred, with opinion.
Justice Wright dissented, with opinion.
¶ 1 The defendant, Derrick D. Williams, was sentenced to concurrent prison terms of 35 years for attempted first degree murder (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2006)), 15 years for home invasion (720 ILCS 5/12-11(a)(2) (West 2006)), and 6 years for armed robbery (720 ILCS 5/18-2(a)(2) (West 2006)). The defendant appeals the dismissal of his successive post-conviction petition. He argues that the trial court erred when it did not apply his $5-perday custody credit toward his $200 deoxyribonucleic acid (DNA) analysis. 730 ILCS 5/5-4-3(j) (West 2006). We affirm.
¶ 2 Following the defendant's convictions, he was ordered to pay a $200 DNA analysis fee. The defendant was in custody from July 22, 2006, until he was sentenced on November 9, 2006. After sentencing, the defendant filed a direct appeal. While the defendant's direct appeal was pending, he filed a post-conviction petition. The trial court dismissed the defendant's post-conviction petition. Thereafter, we issued our order on the defendant's direct appeal. People v. Williams, No. 3-06-0838 (2008) (unpublished order under Supreme Court Rule 23).
¶ 3 On November 2, 2009, the defendant filed a successive post-conviction petition without leave of the court. The court denied the petition, and the defendant appealed.
¶ 4 On appeal, the defendant argues that the trial court should have applied his $5-perday credit toward his $200 DNA assessment.
¶ 5 The State argues that we should not grant the defendant's request because he failed to seek leave of the court to file a successive post-conviction petition and he does not meet the cause and prejudice requirements. Further, the State urges us to adopt the reasoning in People v. Tolliver, 363 Ill. App. 3d 94 (2006), which held that the $200 DNA analysis fee is not a fine and therefore is not compensable by the presentencing credit.
¶ 6 A defendant is allowed $5 for each day he is incarcerated but does not supply bail before sentencing. 725 ILCS 5/110-14 (West 2006). "[A] claim for per diem monetary credit conferred by section 110-14 of the Code of Criminal Procedure of 1963 is a statutory right [citation] and is not cognizable under the Post-Conviction Hearing Act." People v. Caballero, 228 Ill. 2d 79, 87 (2008). However, section 110-14 does not specify the time frame or procedural stage during which an application for credit can be made. Granting the credit on the appeal of a post-conviction petition is " 'a simple ministerial act that will promote judicial economy by ending any further proceedings over the matter.' " People v. Woodard, 175 Ill. 2d 435, 456-57 (1997) (quoting People v. Scott, 277 Ill. App. 3d 565, 566 (1996)). Therefore, defendant may raise his claim for monetary credit on the appeal of his post-conviction petition because the basis for granting the relief is clear and available from the record. See Caballero, 228 Ill. 2d 79.
¶ 7 Next, we look to whether the DNA assessment was a fee or a fine, as the credit may be levied against a fine but not a fee. 725 ILCS 5/110-14 (West 2006). A fine " 'is a part of the punishment for a conviction, whereas a "fee" or "cost" seeks to recoup expenses incurred by the State *** in prosecuting the defendant.' " People v. Long, 398 Ill. App. 3d 1028, 1032 (2010) (quoting People v. Jones, 223 Ill. 2d 569, 582 (2006)). Our supreme court explained in People v. Marshall, 242 Ill. 2d 285, 296 (2011), that the DNA analysis fee "is intended to cover the costs of the DNA analysis[.]" From Marshall, the Second District reasoned that the DNA analysis fee is not imposed on a defendant as punishment, but is used to "cover the costs incurred in collecting and testing a DNA sample that is taken from a defendant convicted of a qualifying offense." People v. Guadarrama, 2011 IL App (2d) 100072, ¶13. We agree with the Second District that the DNA analysis fee is better characterized as a fee and not a fine. Thus, we find that the defendant could not apply his presentencing credit to satisfy his $200 DNA analysis fee.
¶ 8 The judgment of the circuit court of Warren County is affirmed.
¶ 10 JUSTICE HOLDRIDGE, specially ...