No. 2--01--0067		5/31/02 DRAFT

________________________________________________________________

	IN THE

	APPELLATE COURT OF ILLINOIS

	SECOND DISTRICT

________________________________________________________________

THE PEOPLE OF THE STATE	)	Appeal from the Circuit Court

OF ILLINOIS,	)	of Ogle County.

		)

	Plaintiff-Appellee,	)

	)	

v.	)	No. 98--CF--40

	)

JOE L. MANCILLA,	)	Honorable

	)	Stephen C. Pemberton,

	Defendant-Appellant.	)	Judge, Presiding.

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	JUSTICE GROMETER delivered the opinion of the court:

	Defendant, Joe L. Mancilla, entered a blind guilty plea to the

unlawful possession, with the intent to deliver, of more than 1 but

less than 15 grams of a substance containing cocaine (720 ILCS

570/401(c)(2) (West 1998)).  The trial court sentenced defendant to

five years' imprisonment and imposed, among other things, a $1,450

fine and a $7,000 street- value fine.  To facilitate the payment of

the fines, the court ordered the Department of Corrections (DOC) to

withhold 25% of defendant's monthly corrections income and remit

that amount to the circuit court clerk.  On appeal, defendant

argues that (1) the  withholding order is void because no statute

allows it and (2) he is entitled to a $15 credit against his fines

for the three days he spent in jail before sentencing.  We vacate

the withholding order and modify the judgment to reflect a $15

credit against the fines.

	The State argues that defendant has waived his challenge to

the withholding order because he did not raise it in the trial

court.  Ordinarily, a sentencing issue not raised during the

sentencing hearing or in a postsentencing motion is waived.  People v. Watkins, 325 Ill. App. 3d 13, 17 (2001).  Here, however, defendant challenges the trial court's statutory authority to enter

the withholding order.  A sentencing order that does not conform to

statutory requirements is void and may be attacked at any time. 

People v. Arna, 168 Ill. 2d 107, 113 (1995); People v. Davis, 319 Ill. App. 3d 572, 578 (2001).  Therefore, we will address

defendant's contention.

	Defendant claims that there is no statute that authorizes a

withholding order directed against DOC wages.  Although we agree 

that the withholding order must be vacated, we do so for a

different reason.

	Section 5--9--4 of the Unified Code of Corrections

(Corrections Code) provides that "[t]he court may enter an order of

withholding to collect the amount of a fine imposed on an offender

in accordance with Part 8 of Article XII of the Code of Civil

Procedure [735 ILCS 5/12--801 et seq. (West 2000)]."  730 ILCS 5/5- -9--4 (West 2000).  Defendant relies on the Fourth District's

decision in People v. Watson, 318 Ill. App. 3d 140 (2000).  There, the court held that "[t]he relevant sections of the Code of Civil

Procedure do not authorize the withholding of DOC wages."  Watson, 318 Ill. App. 3d at 143.  The Fourth District followed Watson in People v. Calvert, 326 Ill. App. 3d 414, 426 (2001);, People v. Scott, 324 Ill. App. 3d 641, 641-42 (2001);, and People v. Williamson, 319 Ill. App. 3d 891, 900 (2001).  The Fifth District has followed Watson.  People v. Torres, 327 Ill. App. 3d 1106, 1115 (2002).

	We disagree with Watson and the decisions following it.  A review of the Code of Civil Procedure and the Corrections Code

leads us to conclude that the legislature did not intend to exclude

DOC wages from withholding orders.  When construing a statute, a

court's primary objective is to ascertain and give effect to the

legislature's intent.  People v. O'Brien, 197 Ill. 2d 88, 90 (2001).  Our inquiry always must begin with the language of the

statute, which is the most reliable indicator of legislative

intent.   People v. Pullen, 192 Ill. 2d 36, 42 (2000).  Where a statute is unambiguous, a court must give it effect as written

without reading into it exceptions, limitations, or conditions that

the legislature did not express.  People v. Rivera, 198 Ill. 2d 364, 371 (2001).

	Article XII, Part 8, of the Code of Civil Procedure governs

the procedure by which a judgment creditor may obtain a wage

deduction order against a judgment debtor's employer.  Section 12--

801   defines "wages" as "any hourly pay, salaries, commissions,

bonuses, or other compensation owed by an employer to a judgment

debtor."  735 ILCS 5/12--801 (West 2000).  Although the relevant

Code of Civil Procedure provisions do not mention DOC wages, the 

Corrections Code contemplates an employment situation, and the DOC

wages are compensation for work performed.

	Chapter III, Article 12, of the Corrections Code governs

correctional employment programs.  Section 3--12--1 provides that the DOC "shall, in so far as possible, employ at useful work

committed persons confined in institutions and facilities of the

[DOC], who are over the age of compulsory school attendance,

physically capable of such employment, and not otherwise occupied

in programs of the Department."  730 ILCS 5/3--12--1 (West 2000). 

Section 3--12--2(a) prescribes the types of employment the DOC may

establish.  730 ILCS 5/3--12--2(a) (West 2000).

	Section 3--12--5 establishes the compensation for such work:

		"Persons performing a work assignment under

subsection (a) of Section 3--12--2 may receive wages

under rules and regulations of the [DOC]. *** Of the

compensation earned pursuant to this Section, a portion,

as determined by the [DOC], shall be used to offset the

cost of the committed person's incarceration. *** All

other wages shall be deposited in the individual's

account under rules and regulations of the [DOC]."  730

ILCS 5/3--12--5 (West 2000).

	We see nothing in the relevant statutory schemes indicating

that the legislature intended to exclude DOC wages from the scope

of section 5--9--4 of the Corrections Code.  The legislature has

established the types of income exempt from deduction orders, and

DOC wages are not included.  See 735 ILCS 5/12--804 (West 2000). 

The Corrections Code contemplates an employment situation and the

payment of wages as defined in section 12--801 of the Code of Civil

Procedure.  We note that the author of Williamson has reconsidered her position and now believes that DOC wages fall within section

12--801's definition of "wages."  Scott, 324 Ill. App. 3d at 642-43 (Myerscough, J., specially concurring in part and dissenting in

part).  For these reasons, we reject defendant's argument.

	Although we have concluded that section 5--9--4 applies to DOC

wages, we nevertheless must vacate the withholding order here

because the statutory procedure for obtaining such an order was not

followed.  The Code of Civil Procedure provides for the issuance of

a summons against the employer (735 ILCS 5/12--805 (West 2000)),

the consideration of offsetting and adverse claims (735 ILCS 5/12--

809, 810 (West 2000)), and a trial conducted as in other civil

cases (735 ILCS 5/12--811(c) (West 2000)).  Here, there was no

procedure that resulted in the withholding order.  The issue was

not even discussed during the sentencing hearing, and it appears

that the withholding order merely was a part of a standard

sentencing form.

	We acknowledge that DOC wages present a unique situation.  For

example, the judgment creditor and the employer are the same

entity.  Nevertheless, absent the parties' agreement on the issue,

compliance with the statutory procedure is required to ensure that

all claims against a defendant's wages receive due consideration. 

Because no wage deduction proceeding under the Code of Civil

Procedure was conducted here, the withholding order was void. 

Davis, 319 Ill. App. 3d at 578-79.

	An additional problem here is that the amount of the

withholding, 25% of defendant's DOC wages, appears to exceed the

amount authorized under section 12--803 of the Code of Civil

Procedure.  That provision states that the maximum wages subject to

collection are the lesser of (1) 15% of the debtor's gross weekly wages or (2) the amount by which the disposable earnings for a week

exceed 45 times the federal minimum hourly wage.  735 ILCS 5/12--

803 (West 2000).  Thus, it appears that the 25% withholding order

exceeds the permitted amount.  See Davis, 319 Ill. App. 3d at 578 (50% withholding order); People v. Despenza, 318 Ill. App. 3d 1155, 1157 (2001) (same).

	Defendant's second contention on appeal is that he is entitled

to a $15 credit against his fines because he spent three days in

jail before sentencing.  The State agrees.  The record reveals that

defendant was arrested on March 12, 1998, and posted bond on March

14.  Defendant is entitled to a $5 credit against his fines for

each day he was incarcerated before sentencing.  725 ILCS 5/110--14

(West 2000); People v. Gonzalez, 316 Ill. App. 3d 354, 366 (2000).

	For the foregoing reasons, we affirm defendant's conviction

and prison sentence but vacate the withholding order and modify the

judgment of the circuit court of Ogle County to reflect a $15

credit against defendant's fines.

	Affirmed in part as modified; vacated in part.

	McLAREN and BOWMAN, JJ., concur.