## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Molidor , 2012 IL App (2d) 110006

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. MI CHAEL

F. MOL I DOR, Def

endant- Appellant.

District & N o. Second District Docke t No. 2-11-0006

Filed May 25, 2012

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) T h e trial court’s order denying defe ndant’s motion for the return of h i s bond was aff

irmed, but the order was modified to provide that the DNA analy sis fee was vaca

ted due to defe ndant’s prior submissi on of his DNA, the dru g co u rt/mental health court fee was order ed to be offse t by the

cre dit to which defe ndant was entitled for h i s prese ntence custody
, and the Viol ent C rime Victim s Assistance Fund fine of $25 wa s re duced to $4 without any cre dit for prese ntence incar ceration, since the fine is only $4 when any other fine is imposed, and the drug court/mental health court fee was imposed and that fee is a fine, and for the sake of clarity
, the fines imposed by the circ uit court cler k wer e vacated and reimposed pursuant to the appellate court’s au th o ri t y to “make any order that ought to have been g iven or made .”

Dec ision Under Review Appea l from the Circuit Court of L ake County
, No

. 0 8 -C F- 2780; the Hon. Georg e B ridg es, Judge, pr esiding

.

J udg ment Affir med as modified a

nd rema nded.Counsel on

Appea l Thomas A. L ilien a n d B r u ce Kirkham, both of State Appellate Def ender ’s Offic e, of Elg in, for appe llant.

Michae l J . Waller, State’s Attorney , of W aukeg an (L awr ence M. Ba uer and Victoria E. J ozef, both of State’s Attorney s Appellate Prosecutor’ s Offic e, of c ounsel), for

the People.

Panel J USTI CE HUDSON deliver ed the judgment of the c ourt, with opinion.
J ustices Z enoff

and Schostok conc urre d in the judgme nt and opinion.

OP INION

¶ 1 Def

endant, Michae l F. Molidor, plead e d g u ilty to violating the Sex Offe nder Reg istration Act (730 IL CS 150/ 1 et s eq. (West 2008)) by failing to report a chang e in his employ

ment (730 I L CS 150/6 (West 2008)), and the tri al court sentenc ed defe ndant to seven year s in prison. The trial court d enied defe ndant’s subsequent motion for the return of his bond, finding that it had been applied to satisfy cer tain as sessments imposed ag ainst defe ndant. Def endant appea led. On ap p eal, defe ndant argues that we should (1) vacate a $200 DNA analy sis fee ; (2 ) gra n t d efe ndant a $10 cre dit sufficie nt to satisfy a $10 drug court/mental health court fee ; (3) re duce a Violent Crime Victims Assistance F und fine fr om $25 to $4; and (4) afte r applying defe ndant’s $500 bond to satisfy the total assessments, return the

rema ining bond balanc e to defe ndant or his de signe e. For the rea sons that f ollow, w e grant defe ndant the re lief re quested.

¶ 2 I . BA CKGROUND ¶ 3 On J anuar

y 21, 2010, defe ndant pleade d guilty to violating the Sex Offe nder Reg istration Act by failing to repor

t a chang e in his employ

ment. On September 30, 2010, the trial court sentenc ed defe ndant to seven y ea rs in prison, g iving him cre dit for 583 day s spent in
prese ntencing custody

. The court failed to pronounce any fee s, fines, or costs. Howeve r, the party financ e summary query (found in the supplemental rec ord) shows that defe ndant was assessed $524 in fee s, fines, and costs. Def endant’ s $500 bond was applied toward t h ese assessments, leaving $24 due as of Marc h 29, 2011. The assessments included a $200 DNA analy sis fee
, a $10 drug court/mental health court fee
, an d a $25 Violent Crime Victims Assistance Fund fine. The sup p lemental rec ord also shows that defe ndant previously submitt ed a DNA sample in 1995. ¶ 4 On Novembe r 22, 2010, defe ndant filed a pro se motion see king the return of the $500 bond. Def

endant a rgued that the trial court “never order ed a forfe iture of bond or pay ment

-2-from bond monies for fines, fe e[ s ], costs, or charg es” and that there fore defe ndant was

“entitled to the return of all bond monies, less 10%.” On November 24, 2010, th e court denied the motion, finding that “[t] he bond was not forf eited, but it has been applied to the costs that [defendant] owes.” ¶ 5 On Dec ember 22, 2010, defe ndant filed a pro se notice of appea l, indicating that he was “appe aling ONLY the above cited order s enter ed o n No vember 24, 2010.” An amende d notice of appea l was filed on Dec ember 29, 2010. The amende d notice indicated that the date of judgme nt w as September 30, 2010, but that the appea l w as from the “denia l of return of bond monies posted.” ¶ 6 Def

endant contends on a

ppeal that va

rious fines and f

ees imposed upon him should be

vacated or modified and that, afte r applying the $500 bond to pay the p ro p erly imposed assessments, the re maining ba lance should be retur ned to def

endant.

¶ 7 I I . ANALYSI S ¶ 8 A. Jurisdiction ¶ 9 Be fore addre ssing the merits of defe ndant’s claim, we first addre ss the State’s contention that we lack jur i sdiction over this appea l. Acc ording to the State, we lack jurisdiction beca use (1) defe ndant’s motion for the return of his bond was filed more than 30 day s afte r judgme nt, and (2) even if we have jurisdiction over the denial of the motion for return of the bond, we do not ha

ve jurisdiction over defe ndant’s arg uments conce rning the various fines and fee s, beca

use defe ndant’s notice of appea l seeks revie w of only the order denying return of the bond. ¶ 10 Relying on I llinois Supreme Court Rule 604(d) (ef f. J uly 1, 2 0 0 6 ) an d P eo

p le ex re l. Alvarez v. Skryd
, 241 I ll. 2d 34, 39 (2011), the State argues that, beca use defe ndant failed to file a motion within 30 day s of sentenc ing, this court m u s t dismiss the appea l. Def endant maintains that his motion for re tu rn of the bond is g overne d not by Rule 604(d) but rathe r by section 110-7(f

) of the Code of Criminal Procedur e of 1963 (Code of Criminal Procedur e) (725 I L CS 5/110-7(f

) (West 2010)), which contains no time limit for reque sting return of a bond. Relying on People v . Mingo , 403 I ll. App. 3d 968 (2010), defenda nt argues that t his court may not impose a ti me l imitation that the l egis l atu re did not express. We agree with defe ndant. ¶ 11 In Mingo
, the defe ndant filed under secti o n 5 -9 -2 o f t h e Unified Code of Corre ctions (C o de of Correc tions) (730 I L CS 5/5-9-2 (West 2008)) a petition for revoc ation o f fi n es about four year s afte r his convictions. Mingo
, 403 I ll. App. 3d at 970. The trial court denied the petition. The defe ndant timely appea led, arguing only that the DNA analy sis fee imposed
upon him should be deeme d satisfied by a cre dit for time spent in prese ntencing custody

. Id. The State argued, inter alia
, that the trial court was without jurisdiction to rule on the defe ndant’s petition, beca use it had been filed more than 30 day s afte r entry of judgme nt. Howeve r, we held t hat t he petiti on was a “fr eesta nding, collatera l action[ ]” u n d er s ec tion 5-9-2 of the C ode of Correc tions and not subject t o any time limit ations. Id. at 970-71. To deter mine whether the defe ndant’s petition was timely
, we applied the well-settled rules of

s t at u t o ry construction and examined the plain languag e of section 5-9-2 of the Code o f

-3-Correc tions. Id. at 971. We found that the “plain languag e of section 5-9-2 does not impose

any time limi t on the filing of a petition to revoke fines.” Id. We stated: “To impose a time limit ation, such as within 30 day s of the entry of judgme nt, would be to impose a limit ation that the leg islature did not express, something we are not permitted to do.” Id. ¶ 12 Her e, as in Mingo
, the plain l an gu age of the statute at issue does not establish a time limit ation on the filing of a motion for return o f a b o n d

. S ection 110-7(f ) of the Code of Criminal Procedure provides, in per tinent part, as f

ollows:
“When the conditions of the bail bond hav e been perf ormed and the acc used has been discharg ed from all obligations in the ca u s e the cler k of the court shall return to the

acc used or to the defe ndant’s designee by an assi gn m en t executed at the time the bail
amount is deposited, unless the court order s otherwise, 90% of the sum which had been deposited and shall reta in as bail bond costs 10% of the amount dep o s i t ed.” 725 I L CS 5/110-7(f) (West 2010).
As we are not permitted to impose a time limitation tha t the leg islature did not express, we find that defe ndant’s motion was timely

. Thus, the trial court had jurisdiction to consider the motion, and this court has jurisdiction to consider defe ndant’s timely appea l from the denial of his motion. ¶ 13 Next, we addr es s t he State’s argument that, even if this court has jurisdiction over the denial of defe ndant’s motion for return of the bond, this court does not have jurisdiction over the propriety of the various fines and fee s. Acc ording to the State, the notice of appea l w as limit ed to the order deny

ing defe ndant’s motion and thus does not c onfer jurisdiction upon this court to consider defen dant’s orig inal sentenc e, even if it included unauthorized fines

an d fee s. We disagree

. Resolution of the issue raised on appea l, return of the bond,

nece ssarily depends on the calculation of t h e fines and fee s properly imposed and thus we will consider the issue. We f urther note that a sentenc e that does not confor m to a statutory require ment is void and may be corr ecte d at any time or in any court, either direc tly or collater ally

. People v. Thompson
, 209 I ll. 2d 19, 25 (2004); People v. Arna
, 168 I ll. 2d 107, 113 (1995).

¶ 14 B. F ines and F ees ¶ 15 Turning to the merits, defe ndant contends that various fines and fee s imposed upon him should be vac ated or

modified. The S tate agr ees with defe ndant’s arguments and fina ncial calc ulations, and so do we. ¶ 16 First, defenda nt argues that t he $200 DNA analy sis fee a ssessed under section 5-4- 3(j) of the Code of Correc tions (730 I L CS 5/5-4-3(j) (West 2008)) must be vaca ted, beca use he previously submitt ed his DNA. “[S] ection 5-4-3 authorizes a trial court to order the taking
, analy sis and indexi ngof a qua lifying of fende r’s DNA, and the pa y ment of the a

naly sis fee only wher e that defe ndant is not curr ently reg istered in the DNA databa se.” People v. Marshall
, 242 I ll. 2d 285, 303 (2011). When the defenda nt’s DNA is alre ady reg istered in the DNA databa se, the fee is not au thorized and it must be vaca ted. Id. Her e, defe ndant previously

submitt ed a D NA sample. A ccor dingly , we va cate the $200 DNA a naly sis fee. ¶ 17 Next, defe ndant contends that the $10 drug court/mental health court fee should be offse t

-4-by the $5-per -day cre dit to which defe ndant is entitled for the time he spent in prese ntencing

custody . Section 110-14(a) of the Code of Criminal Procedur e provide s: “Any person incar cer ated on a bailable offe nse who does not s up p l y bail and ag ainst whom a fine is levied on conviction of such offense shall be allowe d a credit of $5 for

eac h day so incar cer ated upon application of the defe ndant. Howeve r, in no case shall the
amount so allowed or cre dited exceed the amount of the fine.” 7 25 I L CS 5/110-14(a) (West 2008).
Def endant did not apply for the cr ed i t i n t he trial court; howeve r, beca use the cre dit is mandatory
, he is permitted to make the reque st for the first time on collater al appea l. People

v. Caballero
, 228 I ll. 2d 79, 88 (2008). Although ref err ed to as a fee
, the drug court/mental health court fee is a fine. See People v. Grave s , 235 I ll. 2d 244, 255 (2009). Def endant spent 583 day s in prese ntencing cust ody and thus is entitled to cre dit in an amount sufficie nt to satisfy the $10 drugcourt/mental he alth court fe e. ¶ 18 L ast, defe ndant contends that the Violent C ri me Victims Assistance Fund fine of $25
must be reduc ed to $4, beca use he was also assessed a drug court/mental health court fee of $10. The $25 Violent Crime Victims Assistance Fund fine is to be imposed only when “no other fine is imposed.” 725 I L CS 240/10(c) (West 2008). Where other fines are imposed, the
court is to assess “an additional penalty of $4 for eac h $40, or fra cti o n t h ereof, of fine imposed.” 725 I L CS 240/10(b) (West 2008). As alre ady noted, although ref err ed to as a fee
, the drug court/mental health court fee is a fine. See Grave s , 235 I ll. 2d at 255. We note that defe ndant is not entitled to any monetary cre dit ag ainst his Violent Crime Victims Assistance Fund fine, as the statute that authorizes the fine specific ally provides that it is not subject to the cre dit. See 725 I L CS 240/10(b), (c) (West 2008) (providing that Violent Crime Victims Assistance Fund fine shall not be considere d a part of the fine for purposes of any reduc tion made in the fine for time serve d befor e sentenc ing)

. Acc ording ly
, here
, wher e the other fine totals $10, defenda

nt’s Violent Crime Victims Assistance F und fine should be $4. ¶ 19 As a final matter, we note that, beca use imposing fines is a judicial act, the circ uit c ourt cler k was without authority to impose the drug court/mental health court fee and the Violent Crime Victims Assistance F und fine. See People v . Evange lista , 393 I ll. App. 3d 395, 401 (2009). Thus, for clarity ’s sake, we n o te that we are vacating those fines imposed by the circ uit court cler

k and re imposing them (subjec t to a ny cre dits) as noted above pursuant to

our authority to “make any order that ou gh t t o h ave been g iven or made” (I ll. S. Ct. R. 366(a) (5) ( eff

. Fe b. 1, 1994)). ¶ 20 Ba sed on the fore g oing, we aff irm the court’s order on defe ndant’s motion for the return of his bond to the extent that it require s that defe ndant’s bond be used to pay ass essments due; howeve r, we modify the order to ref lect that defe ndant, or his designee, is due the bond ref und properly resulting from our revised assessment calc ulations. We rema nd for issuance of that re fund.

¶ 21 Affir

med as modified a

nd rema nded.

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