No. 2-08-1013 Filed: 9-29-10

______________________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

______________________________________________________________________________ THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINO IS, ) of Wi nn eb ag o C ou nt y. ) Plaintiff-Appellee, ) ) v. ) No. 03--CF--3353 ) JOEL L. MI

NGO, ) Honorab le ) Rosemary

Collins, Defend ant-App ellant. ) Judge , Pres idin g.

______________________________________________________________________________ JUSTICE McLA REN delive

red the o pinion of t

he court : Defend ant, Joel L. Mingo, appeals from the trial court's denial of

his petition for revocation of fines brought pursuant to section 5--9--2 of the Unified Code of Corrections(Code) ( 730 I LCS 5/5--9--2 (West 2008)). For the reasons that follow, we a ffirm as modified. BACKGROUND In2004, defendant was convicted of robbery (720 IL CS 5/18--1(a) (West 2002)) and aggr avate d battery (720 I

LCS 5/12--4(b)(1) (West 2002)). He was sentenced to 16 y ears ' imprisonmenton the rob bery convicti on and 10 y

ears'imprisonme

nt on the a

ggra vate d batt ery conviction, and he was ordere d to pay an undeli neated $ 243 in "[f

]ines, [c]ourt [c]osts, [f]ees [and] [p]enalties." In addition, the trial court ordere d defenda nt to pay a $200 DN

A assessment. Pursuant to sect ion 110--14(a) of the Code of Criminal Procedure of 1963 (725 I LCS 5/110--14(a) (Wes tNo. 2--08--1013

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2004)), defendant was awarded a c redit of $5 per day

spent in presentencing custody , tot alin g $1,565. OnJune 26, 2008, defendant filed his petition for revocation of fines. I n the pe ti tion, defendan t requested

that all of

his fines b e vacat

ed and tha

t he be pla

ced in a s

ubstance -abuse progra m. The trial court denied d efend ant's petition. Shortly therea fter, defendant filed a motion to reconsider, which

the trial court also denied. Defendant then brought this appeal raising only the issue that the DNA assessment should be deemed satisfied. ANA LYSIS Onappeal, defenda

nt a rgue s that the credit he was awarded should completely satisfy the $200 DNA assessment and that the judgment should be correc ted to reflect such a satisfaction. Before addressing the merits of defenda nt's cla im, howev er, we m ust fi rst ad dress the S tate's contentionthat we lack jurisdiction over this appeal because the trial c ourt lacked jurisdiction of defend ant's petition. According to the State, the trial cou rt lacke d jurisdiction of the petition be cause ( 1) it was filed more than 30 day s after judgment and (2) it was filed while other a ppea ls wer e pending. We disagree that the trial cour t lacked jurisdiction. Relying on People v. Flowers , 208 I ll. 2d 291, 3 03 (2003) , the State notes that the trial court loses jurisdiction in the original action after 30 day s have passed from the entry of judgment. This does not, howe

ver, re strict the

trial cou rt's ab ility to addre ss freesta

nding, c ollatera

l actions, such as postconviction petitions (725 IL CS 5/122--1 (West 2008)) or petitions brought under section 2- -140 1 of the Code of Civil Procedure (735 IL CS 5/2--1401 (West 2008)). To determine whether a petition brought under sec tion 5--9--2 of the Code i s o ne such freest andin g, collateral action, we must interpret the langua ge of section

5--9--2, which we do deNo. 2--08--1013

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novo . People v. Robinson , 172 Ill. 2d 452, 457 (1996). The primary goal in statutory c onstruction is to ascertain and give effe ct to the intent of the legislature. People v. Pull en , 192 I ll. 2d 36, 42 (2000). In doing so, we

must assume that

the legislature did not

intend an absurd or unjust re sult. Pullen , 192 Ill. 2d at 42. The firs t step is to e xamine the l angua

ge of the statute --"the

surest and most reliable indicator o f legislativ e intent." Pullen , 192 Ill. 2d at 42. Where the language is clea r, the statute may not be re vised to include exc epti on s, limitations, or con ditions tha

t the leg islature

did not express. People v. Goins , 119 Ill. 2d 259, 265 (1988). The plain language of

section 5--9--2 indicates that the legislature intende d petitions for the revocation of fines to be freestanding actions, collateral to the or iginal action. Section 5--9--2 provides: "Except as to fines established for violations of Chapter 15 of the Illinois Vehicle Code, the court, upon good cause sho wn, ma y revoke the

fine or the unpaid portion or may modify the method of payment." 730 I LCS 5/5 --9--2(West 2008). The plain language of se ction 5--9--2 does notimpose an

y time li mit on the filing of a petition to revoke fines. To impose a time limitation, suchas within 3 0 day s of the e ntry of judgment, woul d be to impose a limitation that the legislature did not expres s, somethin

g we ar e not permitt ed to do. Goins , 119 Ill. 2d at 265. Moreover, the legislature has demon strated, on numero us occas ions, its ab ility

to set time

limit s for the f

iling of motions and petitions when it has so chosen. See, e.g. , 725 ILCS 5/1 16--1(b ) (West 2008) (motion for new trial must be filed within 30 days following the verdict); 725 IL CS 5/116--2(a) (West 2008) (motion in arrest of judgment must be filed within 30 days following the finding or verdict of guilty); 730 IL CS 5/5--8--1(c) (West 2008 ) (requ iring a motion to re duce sen

tence to be filed within 30 da ys of the sentence's imposition).No. 2--08--1013

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Inaddition, to require petitions under se ction 5-- 9--2 of t he Code to

be filed within 30 da ys of the judgment would be to render s ection 5--9--2 superfluous and meaningle ss. See People v. Jones , 214 I ll. 2d 187, 1 93 (2005)("statu te[s] should b e read a s a whole and construed so that no part
*** is rende

red mea ningles s or super

fluous" ); Artisan Design Build, I nc. v. Bilstrom , 397 Ill. App. 3d 317, 328 (2009) (an act must be read in its entirety ). Section 5--8--1(c) of the Code (730

IL CS 5/5--8--1(c) (West 2008)) provides that a motion to r

educe se ntence m ust be filed within 30 days of the imposition of sentence (the judgment in a criminal case). I f a defendant's request to re voke fines
were require d to be filed

within 30 da

ys o f the judg

ment, it co

uld simply

be includ ed in a mot

ion to reduce the sente

nce; no se

parate petition w ould be re quired. T hus, to re ad secti o n 5--9--2 as requiringthe filing of a

petition for revocation of fines wit hin 30 day

s of the ju dgment would be to make section 5--9--2 duplicative of section 5--8--1(c ), thus rendering section 5--9--2 supe rfluous and meaningless. Moreover, the good-cause requirement in sec tion 5--9--2 s ugge sts that the legislature intended section 5 --9--2to provide a defendant relief from fines w hen factors, external to the original procee dings, would warrant the revocation of the fines to ea se a defendant's financial burde n. See 730 ILCS 5/5- -9--2 ( West 2008) (allo wing f or t he revocation of fines "upon good c ause shown"). Such factors certainly

could, and likely would, arise after 30 days had passed from the imposition of the sente n ce. Thus, limiting the time frame in which a section 5--9--2 pe tition may be brought would negate the implied purpose of allowing defendants to seek financia l relief a t any appropr iate time.No. 2--08--1013

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Ac co rd in gl y, we conclude that the plain langua ge and purpose of section 5--9--2 of the Code indicate that the legislature intended section 5--9-- 2 petitions to be freestanding, collateral actions not subject to the ord

inary 30-day jurisdict ional time

limit. The State also argues that the trial court lacked jurisdiction bec ause def e ndant had two appeals pending when he filed the petitio n for revocation of fines. While, ty pically, a trial cour

t l oses jurisdict

ion upon the

filing o f a notic e of appe al, it ret ains juris diction " where the matte r appealed from is ind ependent of, and collater al to, the cas e before the tri al court." People v. Shukovsky , 128 Ill. 2d 210, 227 (1988); see also People v. Hernandez , 296 Ill. App. 3d 349, 351 (1998) ("the court retains jurisdiction [after the filing of a notice of appeal] to perform ministerial functions and to d etermine matters that are independent of and collatera l to the order being appealed"). Here, the ord ers t hat were on appeal denied defe ndant's requests that his sentence be reduced and that he be awarded additional credit for time serv ed. Thes e issues were collateral to the issue of whether defendant's fines should have been revoked. Moreover, beca use we determine that
a petition under section

5--9--2 is a freestanding, collate ral action, similar to a petition under section 2--1401 of the Code of Civil Procedure or a postconviction petition, it will alwa ys b e collate

ral to whatever is pending on appeal. See People v. Walker , 3 95 Ill. App. 3d 860, 867 (2009) ("our supreme court has held that the pendency of a direc t appeal does n ot aff ect th e tria l cour t's jurisdiction to enter

tain collateral attacks, including petitions under the [Pos t-Co nvict ion He aring] Act and section 2--1401"). Co ns eq ue nt ly, the trial co urt did h ave jurisdiction to decide defendant's petition for
revoca tion of fines and, in

turn, we have jur isdiction t o review defenda nt's app eal.No. 2--08--1013

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Turning to the merits, defendant did not contend in his petition to revoke that his $5-per-day credit should com

pletely satisfy the $200 D

NA asses sment. Be cause the credi t i s mandator y, however, defenda

nt is permi

tted to ra ise the issue for the first time on collateral appeal and the issue cannot be forfeited. Peoplev. Caballero , 228 Ill. 2d 79, 88 (2008). I n People v. Long , 398 Ill. App. 3d 1028, 1034 (2010), the Fourth District held that the $200 DNA assessment imposed under section 5--4-- 3(j) of the Cod

e (730 I LCS 5/5 --4--3 (j) (West

2008)) was a fine, rather than a fee. As such, it was subj ect to be ing sati sfied, in whole or in part, by th e credi

tawarded to the defendant for the time he served

in presentencing custody
. Long , 398 Ill. App. 3d at 1034. Here, the State does not argue otherwise. Accord

ingly, we appl

y defendant’s credit of $1,565 to completely satisfy the $200 DNA assessment. (No other fi n es to whic h the $1,5 65 would a

pply were imp osed ag ainst defendant.) See 725 ILCS 5/110--14(a) (West 2008). Defendant

acknowledges that because the DNA assessment is a fine, he is subject to a fine under section 10(b) of the Violent Crime Victims Assistance Act (Ac t) (725 I LCS 240 /10(b) ( West 2008)). See Long , 398 Ill. App. 3d at 1034. Section 10(b) of the Act provide s for the imposition of
a $4 fine for every

$40, or part thereof, in other f ines impose d. The onl

y ot her fine imposed a

gainst defendant was the $200 DNA assessment, meaning that defendant should have been assessed

a $20 f ine under section 10(b) of the Act. Pursuant to Supreme Court Rule 366(a)(5) ( 155 Ill. 2 d R
. 366(a)(5)), we now enter the $20 finethat should have been assessed against defendant. This fine is not subject to being offset by defend ant's $5-per-day

credit for time spent in presentencing
cu st od y. 725 IL CS 240/10(b) (West 2008) ("Such additiona l penalty shall not be considered a part of the fine for purp oses of a

ny r eduction made in th e fine f

or time se

rved eit her bef ore or afte r sentencing"); see also People v. Evange lista , 393 Ill. App. 3d 395, 402 (2009).No. 2--08--1013

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N The judgment of the circuit court of Winnebago County is aff

irmed as modified to reflect that th e $200 DNA asse ssment impo sed on de fendant is complet

ely satisfie d by

the cre dit awar

ded to defendant, and that a $20 Violent Crime Victims Assistance Act fine is imposed. Affirmed as modified. ZENOFF, P.J., and BURKE, J., concur.