People v. Tolliver

• Court: Appellate Court of Illinois
• Decided: January 18, 2006
• Docket: 1-04-2059 Rel
• Status: Published

Opinion

THIRD DIVISION JANUARY 18, 2006

1-04-2059

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 03 CR 13650 ) BANNYE TOLLIVER, ) Honorable ) Kathleen M. Pantle, Defendant-Appellant. ) Judge Presiding.

JUSTICE ERICKSON delivered the opinion of the court:

Following a bench trial, defendant Bannye Tolliver was convicted of two counts of

unlawful use of a weapon by a felon (UUW) and sentenced to concurrent terms of five

years' imprisonment. He was also ordered to submit blood specimens to the Illinois State

Police for genetic analysis pursuant to section 5-4-3 of the Unified Code of Corrections

(section 5-4-3) (730 ILCS 5/5-4-3 (West 2002)).

On appeal, defendant contends that he is entitled to $5 credit for each day he was in

custody prior to sentencing to be applied toward the $665 "fine" assessed to him, and that a

specific $20 fine is inapplicable and should be vacated. Defendant also contends that one

of his two UUW convictions must be vacated because multiple convictions for a single act

of possession are prohibited. Finally, defendant contends that the extraction of his blood

and storage of his DNA profile pursuant to section 5-4-3 violates his fourth amendment

right to be free from unreasonable searches and seizures.

Because defendant has not contested the sufficiency of the evidence to sustain his 1-04-2059

conviction, a detailed discussion of the facts of the case is unnecessary. It is sufficient to

say that defendant and codefendant, Terry Turner, who is not a party to this appeal, were

arrested on June 7, 2003, after a loaded handgun fell to the ground from the front of

defendant's body. The State also presented a certified copy of defendant's 2002 felony

conviction for possession of a controlled substance at trial.

The trial court found defendant guilty of two counts of UUW, one based on

possession of a handgun and the other based on possession of firearm ammunition.

Thereafter, the court sentenced defendant to concurrent terms of five years' imprisonment,

awarded him credit for 366 days served, imposed statutory fees and costs and ordered

defendant to submit blood specimens for DNA analysis.

On appeal, defendant first contends that he is entitled to $5 credit for each day he

was in custody prior to sentencing to be applied toward the $665 "fine" assessed to him by

the trial court. Defendant asserts that he was in custody for 366 days and accumulated a

credit of $1,830. He acknowledges, however, that the $100 fee for the Trauma Center

Fund cannot be reduced pursuant to the controlling statute. 730 ILCS 5/5-9-1.10 (West

2002). He thus concedes that he owes the $100 fee, but maintains that the remainder of

his assessment is offset by his credit. In addition, defendant acknowledges that the $20

fee for the Violent Crime Victims Assistance Fund is not subject to the credit, but argues

that the fee was erroneously assessed to him and should be eliminated. Defendant notes

that this fee applies only when "no other fine is imposed" (725 ILCS 240/10(c) (West

2002)), and claims that because he was charged several "fines," it should not have been

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assessed to him.

Section 110-14 of the Code of Criminal Procedure of 1963 (the Code) provides that

a defendant who is assessed a "fine" is allowed a credit of $5 for each day he was in

custody on a bailable offense for which he did not post bail. 725 ILCS 5/110-14 (West

2002); People v. Littlejohn, 338 Ill. App. 3d 281, 283, 788 N.E.2d 339 (2003). The plain

language of this statute indicates that the credit applies only to "fines" that are imposed

pursuant to a conviction, not to any other court costs or fees. Littlejohn, 338 Ill. App. 3d at

283; People v. White, 333 Ill. App. 3d 777, 781, 776 N.E.2d 836 (2002). This court has

previously found that "[a] 'fine' is a pecuniary punishment imposed as part of a criminal

sentence." People v. Bishop, 354 Ill. App. 3d 549, 562, 821 N.E.2d 677 (2004). In

contrast, a "fee" is a charge for labor or services, and is a collateral consequence of the

conviction which is not punitive, but instead, compensatory in nature. Bishop, 354 Ill. App.

3d at 562.

Here, we find that the charges defendant claims are "fines" entitled to the credit are

actually court costs and fees. According to the assessment order in the record, defendant

was charged "costs and fees" for the filing of the felony complaint, the felony complaint

conviction, the preliminary hearing, the State DNA identification system, the clerk's

automation and document storage fees, the sheriff's court services fee, and the State's

Attorney's fee for one day of trial. We find that all of these charges are compensatory and

a collateral consequence of defendant's conviction, and as such, are considered "fees"

rather than "fines." Accordingly, the credit stated in section 110-14 of the Code cannot be

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applied against these assessments.

In addition, we reject defendant's claim that the $20 fee for the Violent Crime Victims

Assistance Fund was erroneously assessed to him. Defendant correctly notes that this fee

applies only where "no other fine is imposed." 725 ILCS 240/10(c) (West 2002). In this

case, the record shows that defendant was assessed numerous fees, but no other "fine"

was imposed against him. We thus find that defendant is liable for this fee.

Defendant next contends, and the State agrees, that one of his two UUW convictions

must be vacated because multiple convictions based upon a single act of unlawful

possession of a weapon are prohibited. Our supreme court has determined that

simultaneous possession of a firearm and firearm ammunition constitutes a single offense

from which only one UUW conviction can be entered. People v. Carter, 213 Ill. 2d 295,

304, 821 N.E.2d 233 (2004). Accordingly, pursuant to our authority (134 Ill. 2d R.

615(b)(1); People v. McCray, 273 Ill. App. 3d 396, 403, 653 N.E.2d 25 (1995)), we vacate

defendant's conviction for UUW under count II and direct the clerk of the circuit court to

amend the mittimus to reflect this modification.

Finally, defendant contends that the extraction of his blood and storage of his DNA

profile pursuant to section 5-4-3 violates his fourth amendment right to be free from

unreasonable searches and seizures. Defendant correctly acknowledges that this court

has upheld the constitutionality of section 5-4-3 against the same challenge he now

presents. See People v. Banks, 358 Ill. App. 3d 924, 926-27, 833 N.E.2d 928 (2005) (and

cases cited therein); accord People v. Garvin, 349 Ill. App. 3d 845, 856, 812 N.E.2d 773

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(2004), appeal allowed, 212 Ill. 2d 541, 824 N.E.2d 287 (2004). Consistent with these

holdings, we similarly reject defendant's argument here.

For these reasons, we affirm the judgment of the circuit court of Cook County as

modified and correct the mittimus.

Affirmed as modified; mittimus corrected.

HOFFMAN, P.J., and THEIS, J., concur.