good morning everyone today is what is in november sixteenth two thousand and eleven the first cases are called the darker the day is agenda number five scuse me case number one eleven five ninety people in the state of precludes or manning a case for a hearing on the defendant's ability to pay a public defender reimbursement fee for the fee was imposed without a hearing where more than ninety days have elapsed since the final entered the final order at the trial level but before i speak about that issue all addressed the jurisdictional issue raised by the statements briefs were here today because of no request by the state's attorney no request by the court no notice to my client and no hearing the circuit clerk acted outside its authority and assessed a public defender reimbursement fee that had not been ordered by the court the state suggests that i would be appellate court nor this court have jurisdiction over this appeal because the different the notice of killed or not indicate the defendant was challenging the assessment of fines or fees and also because the imposition of the was not  defendant is appealing from anything other than his conviction thus pursuant to this court's recent decision in people v lewis the notice of appeal was sufficient to put the state on notice that the defendant was appealing from his conviction sentence and the entire the state's second jurisdictional argument that the appellate court lacks jurisdiction to review actions of a circuit clerk which are not taken to pursuant to our embodied in an order of the court that fails as well essentially the state is arguing that the appellate court lacks the authority to address of way judgment the fact that the fee was imposed by the circuit clerk of its own volition here is not in dispute nor is it disputed that the circuit clerk made on impose even mandatory fines and fees that are not ordered by the court nor is it disputed that the trial court may not delegate its duties to the clerk to do these sorts of things bus because the fine because the fee here was imposed completely by the clerk who had no authority to do so this was the very definition of avoid judgment because the appellate court had jurisdiction by virtue of the properly filed notice of appeal it had jurisdiction pursuant to supreme court rule six fifteen b to address that judgment affirm that whenever a court appoints counsel to represent a defendant the court may order the defendant to pay a reasonable sum to reimburse the county or the state for their representation however before such a female would be imposed due process requires hearing take place and section one thirteen point one a instructs that the court has to consider specific things in that hearing and it also states that such hearing shall occur at any time after the appointment of counsel but no later than court held that the statute plainly requires that the trial court conduct within the specified time period a hearing into the defendant's financial resources and determine his ability to pay as this court is aware statutes are to be read as a whole and construed to to every word clause and sentence and cannot be read to render any part meaningless or superfluous the interpretation or directory interpretation as proposed by the state here would render that ninety day requirement completely meaningless because what it  within the statute there in the case law requires that there be negative words or language indicating that the action is to occur at no other time or no other way and here we have the language that says but no later than if the  the legislature had written the statute to say within ninety days we might be talking about something different but here the legislature chose to say but no later than that is negative language that clearly indicates that this is not to occur at any time after the new days has elapsed from the entry of the final order we know that the fee cannot be imposed without the hearing there and the statute that precludes the hearing from occurring at any other time there by the implicit penalty here for noncompliance is you can't impose the if the if the statute was followed and there was a hearing within the ninety days and then it went up on appeal i believe that if there was an argument that it was the hearing was improper you could remand it for a new hearing because in that instance the statute has been complied with there was a hearing there was an order but here we don't have that here we have no compliance with the statute whatsoever in love love peace was there the love peace was remanded however it's not clear from the decision in love that this issue was ever addressed there was several issues going on in love the main one was whether or not the hearing was mandatory at all or whether in that case there was a bond posted and the judge ordered to a spontaneous that the fee would be taken from the bond that have been posted and there was a question about whether or not the hearing was mandatory and whether it could be presumed that posted bond meant that you could afford to pay for counsel but the issue of whether or not this could be looked at supreme court will four sixteen which states that the state in no event shall the filing of a notice of intent to secret decline the death penalty be filed later than one hundred twenty days after  do that direction was found there that stand rule was found to be directory and it's in first blush it appears that that language is pretty similar to what we have here however what is not noted in the state's brief is that immediately following the in no event clause rule four sixteen also provides unless for good cause shown the court directs otherwise here we have no exception to the rules language  well has negative language and immediately has thereafter an exception which implies you know that this was a that was directory here we have no exception the statute clearly says ninety days and without that exception and with him with that negative language this statute is clearly mandatory mandatory thorough for the questions section one thirteen point one is mandatory and for all these reasons as well as those presented in the defendant's priest the defendant respect for the cross this court told that where public defender fees been imposed without a proper notice and a hearing and more than ninety days have elapsed since the entry of the final order to put disposing of the case the trial level that this that the statute does compliance with the court's rules however that alone is not enough to confer appellate jurisdiction over the clerk's independent assessment of a fee yes the notice stated that they were appealing  from the conviction it didn't identify any order other than the conviction but that only confers jurisdiction over the order specified in the notice in this case the fee was not part of any know unfortunately i can't speak to why was not raised but it's not forfeited at this point because the court has an independent duty to address jurisdiction regardless of whether or not it was raised in the intermediate appellate court  this case the notice of appeal didn't identify the actions of the clerk and one would be hard pressed to think of how it could have done so the again there was no order there was no judgements not only does the notice not identify an order or judgement in which case in which the fee was assessed or ordered to sas but even if it had done so it could not have conferred jurisdiction over the clerk's independent assessment because that is not a reviewable order or judgement in this case it's now just too if the court had ordered a fee the clerk in typing the fee into its system had put in a typo and then sent out a fax this party find its query or summary identifying the court wouldn't have jurisdiction over the clerk's typo here we have just a printout from the clerk of a fee that was assessed without anywhere and without any judgment of the court with that in that circumstance here is there any way for a defendant to attack the lady that yes your honor we would say that the defendant who discovers that a fee was improperly assessed by the clerk without any court order should well the circuit court would have jurisdiction over the fee issue because the fee is called lateral to issues of sentencing and and conviction and fact the way the statute is written it provides that the fee can be assessed up to ninety days after the injury the final order or as you can only appeal within thirty days so it contemplates that within sixty days after notice of appeal is entered herb was was filed rather that the court may have to test this fee and because it's not a fine but it's not punitive there's no reason that would necessarily need to be included in sentencing order in the final order of the court and in fact the fourth district has held that it can be assessed even if the  defendant is acquitted because it's not a cost of prosecution such as could only be collected upon conviction it simply to mistreat of cost and the same way that a non indigent defendants would not be able to entitle to collect the today specifically we're talking about it because the lake county clerk whether through a typo or through misunderstanding incorrectly assess the fee then happens in a number of other case it does happen number of other cases that's true there are a number of clerks that are are doing th incorrectly the question is whether the most effective and efficient way to correct these this is these clerks misapprehension of how these fees are assessed is for this court to issue an advisory opinion to the clerks saying don't do it or whether it's to have the defendant simply bring it to the attention of a circuit court who isn't all likelihood totally unaware the fees been assessed at all it doesn't appear anywhere in the court's record the only record we have that the fee was assessed at all is this computer screen and even the state that this is the way it should be done you said the question becomes whether the best ways for this court to get involved and say that basically this is mandatory rather than direct the question is as we see it not whether it's mandatory directory that there be hearing this court is already held in love that there must be a hearing in this case the court didn't hold a hearing but that the clerk made some sort of error at some point if the question is how to correct a clerk's error when they're assessing fees improperly our position is that the easiest way to do that and to spare two levels of appellate review having to go through this is to simply bring it to the circuit court's attention again in all there's no evidence that the court had any idea this had happened and there's nothing to suggest that the court would not have followed this court's clear direction and love that there be a hearing and and w fee had it known the feed been assessed but let's talk about that for a minute closing counsel mentioned when she talked about the negative words i think she's referring to or robinson this is and it talks about the mandatory nature of words prong to overcoming the presumption of directory procedural commands is to reveal any legislative intent that there be a consequence to noncompliance in this case we've got time period and at any time after the appointment of counsel but no later than ninety days at all that says it must be done at any time after the appointment of counsel or within ninety days afterwards but i don't see what happens if you don't well isn't isn't there interpretation saying that no later than ninety days after entry of a final order actually says what is really meant was instead of no later at any time at all isn't that really what your interpretation would lead us to know your honor although a directory reading of the statute doesn't specify what the consequence is it doesn't mean that there is no consequence this court has repeatedly held both and tell if a law in two thousand and eight and robins defendant who was entering a guilty plea as to the immigration consequences of that plea in robinson the court addressed the failure of the clerk to serve the defendant with the notice of the dismissal of his post convention petition in each of those cases the court held that yes the defendant does have a right to an admonishment as to the immigration consequences and yes the defendant does have a right to timely service of that notice but the question is what is the remedy and he said there is no remedy unless there is prejudice so for example in robinson where the clerk did not serve the defendant within the ten days with the notice of dismissal because the defendant nonetheless timely filed a notice of appeal they held that there you this court held that there was no prejudice and so there was no remedy here the the prejudice that the defendant has suffered is an imposition of a fee without an inquiry into his ability to pay such fee the remedy there is not to prevent any inquiry into his ability to pay the fee the remedy is to hold the hearing that he was entitled to let's talk about the procedural brick achilles's would would be the burden of setting the hearing he would agree is placed upon the presenters yes or would they have any incentive to do so under your interpretation and let me let me tell you what i mean asking the question isn't it true if they don't set the he prosecutor doesn't set theory then the defendant will either do wanted two things right they'll either simply pay the fee or they'll raise the issue in which case the area can still be held under your interpretation even one where the ninety days  so what's the incentive for the prosecution meeting their burden of setting here and you're saying i'm sorry your honor this is in cases where the court has not assessed the fee but the  and if the court doesn't move under its own motion for the feeding court isn't seeking the fee so that's just a question of bringing this improperly assessed fee by the clerk to the court's attention to vacate it so the trial court or the prosecution though the burden falls on them and then in the case like we have here where the clerk does it on their own right you're saying the remedy is well they can move to vacate the fee in the circuit court at that particular point that's right but the ninety days under any scenario doesn't mean well that the ninety days means what it says it means that it's a command from the legislature to the court to hold a hearing within ninety days if if no one moved for a fee and the clerk didn't improperly assess a few with night is just nothing happened within ninety days and the state moved for assessment of the fee or for hearing on the ability of the defendant to pay the  would simply ignore the command that it be held within ninety days if it if it did so the question then is what's what's the prejudice that certainly there's an interest in the defendants having a finale to the case and that that may be the prejudice but the situation we have here is simply that the fee was improperly assessed by the clerk but it was and was within the ninety days in order to reach the issue of whether can be remanded we need to essentially treat that as an action of the court to get over the jurisdictional hurdles because again at this point there is no order of the court to be reviewed by the appellate court well even in the case where we're not dealing with the clerk and we're dealing with the board or the prosecutor right there is there's really no incentive for them to set a hearing is there well the incentive is is to collect the ninety days the defendant either pays the fee or you're allowed after that ninety day period to density so where's the incentive to set a hearing per the statute well there's there's no stick embodied in the statute to force courts to comply that's true you know but that's that's the case with all directory statutes that it's not that the court is not commanded to do what the statute if the congress has not specified that there be a consequence then they simply didn't intend that there be a particular consequence and the hope is and the presumption is that a court when ordered by the legislature to comply with a procedural command will do so i mean i don't believe that there is an epidemic of courts deliberately ignoring the commands of the general assembly in this case as particularly in this case where the court didn't do anything where it's simply a clerk who either by typo or by confusion assessed  statutory window the question here is really as as counsel phrased it were the state that fee is assessed within the ninety days but for whatever reason the assessment was defective let's say that there was a hearing but the hearing was of was defective for example the circuit court is required to consider the affidavit filed by the defendant as to his means let's say the circuit court didn't consider that affidavit so it held effective hearing within ninety days under the mandatory reading of the statute that would suggest that as long as the defendant t the remedy in that case would be a no if no fee can be assessed if there is any flaw in in the proceedings under one thirteen actually point one a rather than correcting the problem which is the defect  really the question is whether the defendant is entitled to the process this court afforded him and love that he have a hearing into his ability to pay or whether any any defect in the hearing or the notice defendant a winfall every time there's there's any sort of deficiency in compliance with the statute and would encourage him to stay mum because if you raise it to the circuit court's attention it would in all likelihood vacate the fee correctly comply with the statutes requirements and then he have a fee whereas if he stays quiet files his appeal and he's not only spared the fee but he spared any inquiry into his ability to pay such fee mr snyder and ija close up enough for me not biology as i should know this but i'm not clear on the record was there a motion filed for the fee no your honor there was not so if we go back to your answer the question just as garmin posed about later on making the request for the fee i thought you said then that there would be no  no authority to file a motion your honor that you have an effect aren't you making a de facto motion now after the fact that well outside the ninety days well your honor in some respects it's because of the jurisdictional problems didn't assess the fee and that the appellate court didn't have jurisdiction to to address the rogue actions of the late county circuit clerk it seems as though everyone here agrees that for him to have the authority to stuff that's right the facts here without it being advice because there is no jurisdiction for the public court here it would simply be telling clerks in general you cannot assess this fee in telling appellate courts should a few be assessed by a court  without a hearing within ninety days that you can't remain and i know you've not asked this question but let me ask you should this court issue supervise you were just vacating that fee improperly assessed by the clerk with that not send a message it would we would ask that should the court do that it make clear that is due to the lack of authority of a clerk to assess such fee rather than necessarily that there is some sort of yes your honor and this is the first time isn't isn't this the first time a jurisdictional issue is been raised as far as i know it has your honor but the same way that we haven't forfeited in this case we would say that the the failure to raise in those previous cases hasn't for been ruling on have been acting on fines and fees imposed by the circuit clerks for years there's a number of them listed in my brief and in fact it's very evident that at least in lake county the circuit clerk imposes public defender fees as a matter of course there's this case l cock dalton they're listed in my brief but those are all lake county cases where this occurred and in  fact it's a matter of course in the office of the state appellate defender in the second district that when we have a lake county case we're pretty confident there's going to be a improperly imposed public defender fee because it happens all the time now to suggest that the actions of the clerk aren't reviewable just isn't correct you know i said time and again we see issues where perhaps a court orders that the defendant receive five dollars a credit towards their fines and the clerk doesn't do it so we raise that issue or there's times where the judge says only mandatory fines and the clerk imposes non mandatory fines you know that the clerk's role is to carry out the orders of the court it is not to act on its own and do whatever it thinks the court should have done and that's what happened here and because fines and fees are in general and what could be more efficient the miss court acting in this case and directing the neapolitan but the sort of clerk cannot do what they have been the circuit courts cannot do what they have been doing sending this case to be remanded for the court to consider it is precisely allowing the state to make a motion after more than ninety days have passed to seek public defender fees that it never sought before you know the statute has l language of the statute involves an act of discretion by the state's attorney or the court in the initial even requesting of the fee and here and in all cases where neither the state's attorney nor the court make that request to set  hearing that is a an act by an action that is the decision not to seek it for whatever reason perhaps the court or the state state's attorney based on the affidavit of assets and liabilities of the defendant filed when they request the public defender knows that the defendant is destitute or is going to be deported or is looking at spending twenty years in prison like mr gutierrez is and the likelihood of him being able to reimburse the state for anything is slim  none and there would just be no reason to have a hearing it would be a waste of you to share resources they have the hearing so here what the state is attempting to do is to go back after it already said we're not going to request the fines and the public defender fee and say well gee i guess we want it now well the time has run they had ninety days after they entered the final order to make that decision they chose not to they cannot come back now and try to get that fee what's wrong with the idea when the defendant   vacated there were vacated they can do that with all fines and fees there isn't a requirement that it be raised on appeal but generally it's discovered on appeal and so we raise that in the appeal as as an act you know to preserve judicial resources because it's more efficient to raise it on appeal along with any other issues that are relevant then to say to the defendant ok i'm going to raise this issue of you know reasonable doubt or excessive sentence or whatever issue we might raise but then once your appeal is finalized you should go back and you should write to the clerk and or write to the state string and say i want to come in and have a hearing you know and then get rid of them from their prison and have a hearing then it's  wants to hear but if you if you lay back and do nothing it was up on appeal in the court you're home free i mean isn't it isn't there an incentive there to do nothing well i would say that there's that there is probably in some of there however the defendant didn't even know that this fee had been imposed you know i would venture to guess that his defense his trial counsel didn't even know this he was of course probably the circuit court the circuit court wasn't even aware of this fee had been imposed so you know the defendant doesn't know that he has been imposed until he finds out about it and you know if it's not embodied in a written order by the judge he doesn't know that it occurred and he can't speak up about something he doesn't know about it and it's it's difficult to imagine that a defendant would have any reason to speak up and say hey were you supposed to impose public defender fees you know it's the duty here is squarely on the state and the court and it's not an onerous duty the hearing takes ten minutes you know i in cases where it happens correctly you see the judge say ok you the state or the or the court says you know i want to impose public defender  i'm asking for public defender fees you impose and the judge says ok but your affidavits of liability are assets and liability here are you working does your wife work do you want to card you own house that sort of thing and the judge makes  determination based on that and you know it's not an onerous duty and it can be quickly done and done correctly and this court should not allow the state to go back at this late time in the game and ask for fees that it