{
  "id": 279570,
  "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARVIN DESPENZA, Defendant-Appellant",
  "name_abbreviation": "People v. Despenza",
  "decision_date": "2001-02-07",
  "docket_number": "No. 3-99-0787",
  "first_page": "1155",
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    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
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    "name": "Ill."
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      "reporter": "N.E.2d",
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    {
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      "category": "reporters:state",
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  "last_updated": "2023-07-14T16:02:38.722215+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [],
    "parties": [
      "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARVIN DESPENZA, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "JUSTICE LYTTON\ndelivered the opinion of the court:\nThe defendant, Marvin Despenza, pled guilty to four counts of aggravated possession of a stolen motor vehicle (625 ILCS 5/4\u2014 103.2(a)(3) (West 1998)), eight counts of burglary (720 ILCS 5/19\u2014 1(b) (West 1998)), nine counts of possession of a stolen motor vehicle (625 ILCS 5/4 \u2014 103(b) (West 1998)), and one count of criminal damage to property (720 ILCS 5/21 \u2014 4(1) (West 1998)). His 60-month probationary sentence was subsequently revoked for failure to complete a drug treatment program. The trial court resentenced the defendant to concurrent terms of 12 years for each count of aggravated possession of a stolen motor vehicle, burglary and possession of a stolen motor vehicle. The court also imposed a concurrent term of five years\u2019 imprisonment for criminal damage to property. The trial court ordered the defendant to pay $1,810 in court costs and instructed the Department of Corrections (Department) to withhold 50% of the defendant\u2019s monthly income to pay the costs. On appeal, the defendant asks this court to: (1) vacate the portion of the court\u2019s order directing the Department to withhold 50% of his monthly income; and (2) reduce the 12-year sentences imposed for burglary and possession of a stolen motor vehicle. For the following reasons, we modify in part, vacate in part, and remand.\nI\nThe defendant contends that the trial court lacked the authority to issue an order withholding 50% of his monthly corrections income from the Department to pay his court costs.\nThe State notes that the defendant did not object to this order at trial or in his posttrial motion. Therefore, the State claims the issue is waived. While the defendant did not properly raise the issue, the waiver rule is a limitation on the parties and not the courts. People v. Hamilton, 179 Ill. 2d 319, 688 N.E.2d 1166 (1997); see also People v. Scott, 277 Ill. App. 3d 565, 660 N.E.2d 1316 (1996) (defendant did not waive right to $5-a-day statutory credit even though he failed to raise issue below). In this case, we will consider the merits of the defendant\u2019s argument.\nSection 5 \u2014 9\u20144 of the Unified Code of Corrections (Code) (730 ILCS 5/5 \u2014 9\u20144 (West 1998)) allows a court to enter an order of withholding \u201cto collect the amount of a fine imposed on an offender.\u201d (Emphasis added.) 730 ILCS 5/5 \u2014 9\u20144 (West 1998). A fine is considered a pecuniary punishment imposed in addition to imprisonment upon a person convicted of a crime. Black\u2019s Law Dictionary 569 (5th ed. 1979). Conversely, costs are defined as the charges or fees taxed by the court, such as filing fees, jury fees, courthouse fees and reporter fees. Black\u2019s Law Dictionary 350 (7th ed. 1999). Here, the trial court entered an order of withholding in the amount of the court costs assessed against the defendant. Section 5 \u2014 9\u20144 permits the court to utilize a withholding order only to recover fines. The costs ordered in the present case represented filing fees, sheriff fees and probation costs. Such costs were not imposed upon the defendant as a pecuniary punishment in addition to imprisonment. Accordingly, the trial court erred in entering a section 5 \u2014 9\u20144 order of withholding to recover those expenses.\nWe are compelled to note that, even if the trial court had ordered 50% of the defendant wages withheld to recover a fine, the order would not have complied with section 5 \u2014 9\u20144. Section 5 \u2014 9\u20144 (730 ILCS 5/5 \u2014 9\u20144 (West 1998)) provides that a court may enter an order of withholding to recover a fine imposed on a defendant \u201cin accordance with Part 8 of Article XII of the Code of Civil Procedure.\u201d The reference to \u201cPart 8 of Article XII of the Code of Civil Procedure\u201d is the wage deduction act (Act) (735 ILCS 5/12 \u2014 801 et seq. (West 1998)), which outlines the requirements for entering a wage deduction order. That act allows a trial court to enter an order of withholding against a defendant\u2019s employer to recover a judgment against a defendant. 735 ILCS 5/12 \u2014 802 (West 1998). The order is executed by the defendant\u2019s employer and the deducted wages are remitted to the judgment creditor. 735 ILCS 5/12 \u2014 808 (West 1998). Pursuant to section 12 \u2014 803, the maximum wages subject to collection shall not exceed the lesser of (1) 15% of the debtor\u2019s gross weekly wages or (2) the amount by which disposable earnings for a week exceed the total of 45 times the federal minimum hourly wage. 735 ILCS 5/12 \u2014 803 (West 1998).\nIn the present case, the trial court entered an order of withholding requiring the Department to withhold 50% of the defendant\u2019s compensation. The trial court\u2019s order clearly exceeded the maximum wages subject to collection under section 12 \u2014 803.\nWe therefore vacate the portion of the trial court\u2019s order requiring the Department to withhold 50% of the defendant\u2019s wages and remand the cause for further proceedings consistent with the opinions expressed herein.\nThe judgment of the circuit court of Will County is modified in part, vacated in part, and remanded.\nModified in part, vacated in part, and remanded.\nHOLDRIDGE and SLATER, JJ., concur.",
        "type": "majority",
        "author": "JUSTICE LYTTON"
      }
    ],
    "attorneys": [
      "Kenneth D. Brown, of State Appellate Defender\u2019s Office, of Ottawa, for appellant.",
      "James Glasgow, State\u2019s Attorney, of Joliet (John X. Breslin and Robert M. Hansen, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARVIN DESPENZA, Defendant-Appellant.\nThird District\nNo. 3\u201499\u20140787\nOpinion filed February 7, 2001.\nModified on denial of rehearing March 5, 2001.\nKenneth D. Brown, of State Appellate Defender\u2019s Office, of Ottawa, for appellant.\nJames Glasgow, State\u2019s Attorney, of Joliet (John X. Breslin and Robert M. Hansen, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People."
  },
  "file_name": "1155-01",
  "first_page_order": 1175,
  "last_page_order": 1178
}