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 a hearing on the defendant's ability to pay a public defender fee when more than 90 days had passed since the entry of the final order at the trial court level. On the facts before us, we hold that the cause was properly remanded for a new hearing.
¶ 3 The State charged defendant, Michael Somers, with five counts of burglary (720 ILCS 5/19-1(a) (West 2008)). Defendant entered into a fully negotiated plea agreement with the State, whereby he would plead guilty in exchange for a sentence of two years' probation and 180 days in jail. The circuit court of Livingston County imposed that sentence and also ordered defendant to pay a $200 fee to reimburse the county for the expense of appointed counsel.
¶ 4 Before ordering defendant to pay the public defender fee, the trial court asked whether defendant thought that he could get a job when he was released from jail, and defendant responded, "I'm hoping so." The court then asked defendant if he would use that to pay his fines and costs, and defendant replied, "Yes, ma'am." Finally, the court asked defendant if there was any physical reason why he could not work, and defendant said, "no." After hearing the defendant's answers, the court concluded that a $200 public defender fee would be appropriate.
¶ 5 The State later filed three petitions to revoke defendant's probation, and defendant admitted all three violations. On July 1, 2010, the trial court sentenced defendant to six years' imprisonment, and the court's sentencing order stated that "all financial obligations previously imposed remain in full force and effect." Defendant filed a motion to reconsider his sentence, and the court denied the motion on September 30, 2010.
¶ 6 Defendant appealed, arguing that the court had not complied with section 113-3.1(a) of the Code of Criminal Procedure of 1963 (725 ILCS 5/113-3.1(a) (West 2010)) when it imposed the public defender fee. Defendant asked the court to remand the matter for a proper hearing. The appellate court agreed with defendant that merely asking a defendant about his employment status before imposing the fee does not satisfy section 113-3.1(a)'s requirements. Thus, the court remanded the matter for a proper hearing. No. 4-10-0869 (summary order under Supreme Court Rule 23). Defendant then filed a petition for rehearing, discussing this court's recent decision in People v. Gutierrez, 2012 IL 111590, and arguing that the cause should not have been remanded for a new hearing because more than 90 days had passed since the trial court's final judgment. The appellate court denied the petition for rehearing.
¶ 7 We allowed defendant's petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Feb. 26, 2010).
¶ 9 Defendant raises a single issue for our review. Defendant contends that when more than 90 days have elapsed since the entry of the trial court's final judgment, the appellate court is without authority to remand for a hearing on a defendant's ability to pay a public defender fee. According to defendant, the 90-day time limit provided by section 113-3.1(a) is mandatory rather than directory.
¶ 10 Normally, this argument would be considered forfeited because a remand to the trial court was the specific relief defendant requested in the appellate court, and he raised the timing argument for the first time in his petition for rehearing. However, the State explains that it is forgoing its right to argue forfeiture because this is a recurring issue and the public interest favors this court reaching the merits.
¶ 11 Section 113-3.1(a) of the Code of Criminal Procedure provides as follows:
"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 ...