The opinion of the court was delivered by: Justice Thomas
JUSTICE THOMAS delivered the judgment of the court, with opinion.
Chief Justice Kilbride and Justices Freeman, Garman, Karmeier, Burke, and Theis concurred in the judgment and opinion.
¶ 1 At issue is whether the appellate court properly remanded the cause for notice and a hearing on the defendant's ability to pay a public defender fee when the circuit clerk, on its own, improperly imposed the fee. We hold that the fee should have been vacated outright.
¶ 3 Defendant, Elias Gutierrez, was convicted of predatory criminal sexual assault of a child and sentenced to 20 years' imprisonment. Defendant appealed, arguing that several fines and fees had been improperly imposed. The appellate court allowed him to supplement the record with a certified copy of a "Party Finance Summary Query" that detailed the fines and fees that had been imposed by the Lake County circuit clerk. One of these was a $250 public defender fee. 405 Ill. App. 3d 1000, 1001-02.
¶ 4 The appellate court agreed with defendant that the public defender fee had to be vacated pursuant to section 113-3.1(a) of the Code of Criminal Procedure of 1963 (725 ILCS 5/113-3.1(a) (West 2008)) because defendant had not been provided with notice and a hearing. 405 Ill. App. 3d at 1002. Relying on People v. Love, 177 Ill. 2d 550 (1997), the court held that the fee could not be imposed unless defendant had been provided with both: (1) notice that the trial court was considering imposing the fee; and (2) a hearing that focused on the defendant's financial circumstances and his ability to pay reimbursement for appointed counsel. Id. at 1002-03. The court, however, disagreed with defendant's argument that the fee should be vacated outright. The court explained that it had already held in People v. Schneider, 403 Ill. App. 3d 301, 303-04 (2010), that cases in which the fee is imposed without notice and a hearing should be remanded for a hearing on the defendant's ability to pay. Id. at 1003. In Schneider, the defendant had argued that the case could not be remanded for a hearing because section 113-3.1(a) requires that the hearing be held no later than 90 days after the entry of a final judgment and that time period had already expired. The Schneider court noted that this court had remanded the matter for a hearing in Love and stated that it viewed Love as binding. Schneider, 403 Ill. App. 3d at 304. Here, the appellate court followed Schneider and remanded the cause for a hearing, despite the fact that the 90-day time period had long since expired. 405 Ill. App. 3d at 1003. We allowed defendant's petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Feb. 26, 2010).
¶ 7 Before proceeding to the merits, we must address the State's contention that the appellate court lacked jurisdiction to consider defendant's appeal. The State argues that the appellate court lacked jurisdiction for two reasons: (1) the fee was ordered by the circuit clerk rather than by the court, and the appellate court's jurisdiction is generally limited to reviewing final orders of the circuit court; and (2) defendant's notice of appeal did not indicate that he was appealing the assessment of any fees or fines. We address the notice of appeal question first.
¶ 8 The State argues that defendant's notice of appeal was insufficient to confer jurisdiction on the appellate court to review the assessment of any fees or fines. The State cites People v. Smith, 228 Ill. 2d 95, 104 (2008), for the proposition that "Illinois courts have held that a notice of appeal confers jurisdiction on a court of review to consider only the judgments or parts thereof specified in the notice of appeal." The State notes that defendant filed two notices of appeal. The first indicated that defendant was appealing the denial of his motion to reconsider sentence, but contained the wrong date. The notice of appeal listed the date as August 1, 2008, which was the date of sentencing. Defendant then filed an amended notice of appeal in which he corrected the date to December 23, 2008, which was the date the court's final judgment was entered. Neither notice listed the assessment of any fines or fees and thus, according to the State, neither of the notices "adequately set out the judgment complained of." See Smith, 228 Ill. 2d at 105. We disagree.
¶ 9 In Smith, the defendant's notice of appeal was from the circuit court's judgment of conviction, entered on November 10, 2004, but the defendant's argument concerned the trial court's denial of his "motion for sentence correction," and that order was entered on February 21, 2006. Id. at 103. While acknowledging that notices of appeal are to be construed liberally, this court held that no matter how liberally it construed defendant's notice of appeal, it could not fairly and adequately be read as encompassing the court's order of February 21, 2006. Id. at 105.
¶ 10 Smith is entirely distinguishable. In that case, we held that a notice of appeal, no matter how liberally construed, could not encompass a judgment entered over a year after the judgment identified in the notice. Here, by contrast, defendant appealed from the final judgment in his case. His first notice of appeal indicated that he was appealing from the denial of his motion to reconsider the sentence, but listed the wrong date. Defendant then filed an amended notice that listed the date December 23, 2008, the date of final judgment. Defendant's notice of appeal substantially conformed to the form provided in Rule 606(d) ...