{ "id": 3778382, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EPIFANIO M. ELIZALDE, Defendant-Appellant", "name_abbreviation": "People v. Elizalde", "decision_date": "2003-12-03", "docket_number": "No. 2-02-0605", "first_page": "678", "last_page": "683", "citations": [ { "type": "official", "cite": "344 Ill. App. 3d 678" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "338 Ill. App. 3d 281", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 25407 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/ill-app-3d/338/0281-01" ] }, { "cite": "333 Ill. App. 3d 777", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 487123 ], "weight": 5, "year": 2002, "pin_cites": [ { "page": "782" }, { "page": "781" }, { "page": "781" }, { "page": "781" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/333/0777-01" ] }, { "cite": "119 Ill. 2d 441", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3192926 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "447" }, { "page": "447" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/119/0441-01" ] }, { "cite": "332 Ill. App. 3d 193", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1034094 ], "weight": 4, "year": 2002, "pin_cites": [ { "page": "196" }, { "page": "196" }, { "page": "195" }, { "page": "196" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/332/0193-01" ] } ], "analysis": { "cardinality": 474, "char_count": 11283, "ocr_confidence": 0.732, "pagerank": { "raw": 1.825560230956235e-07, "percentile": 0.7198048998223449 }, "sha256": "4e22458a34b9741763f8415c0456223af6e13500c46becbf9c746eeecce040fa", "simhash": "1:dacba4b347ce6164", "word_count": 1888 }, "last_updated": "2023-07-14T15:11:26.904766+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EPIFANIO M. ELIZALDE, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE O\u2019MALLEY\ndelivered the opinion of the court:\nDefendant, Epifanio Elizalde, appeals from a judgment revoking his probation. Defendant\u2019s underlying conviction was his third conviction of driving under the influence of alcohol. Defendant points out that the trial court\u2019s order entering his conviction errantly states that his conviction was a Class 2 felony where a third conviction of driving under the influence of alcohol is only a Class 3 felony. Defendant argues that we should correct the judgment order and adjust his sentence to reflect that his conviction was a Class 3 felony. For unrelated reasons, defendant also argues that he should be given credit for two additional days of time served against his sentence and $5-per-day credit for time served against a $100 \u201cfee\u201d imposed by the trial court. We affirm in part, modify in part, vacate in part, and remand.\nOn June 1, 2001, defendant pleaded guilty to driving under the influence of alcohol in violation of section 11 \u2014 501 of the Illinois Vehicle Code (Code) (625 ILCS 5/11 \u2014 501 (West 2002)). Defendant\u2019s offense was a Class 3 felony because it was his third violation of section 11 \u2014 501. 625 ILCS 5/11 \u2014 501(c\u20141)(2) (West 2002). The judgment order errantly states that defendant\u2019s third violation of section 11\u2014 501 was a Class 2 felony. Defendant also pleaded guilty to driving while license revoked (625 ILCS 5/6 \u2014 303(d) (West 2002)), a Class 4 felony. Defendant was sentenced to 24 months\u2019 probation on each count, to be served concurrently. Additionally, defendant was ordered to pay a $100 fee that was authorized by section 5 \u2014 1101(d) of the Counties Code (55 ILCS 5/5 \u2014 1101(d) (West 2002)) for a second or subsequent conviction of driving under the influence of alcohol.\nOn April 2, 2002, the State filed a petition to revoke defendant\u2019s probation based on defendant\u2019s failure to report to the probation department as ordered. On May 6, 2002, after holding a hearing on the matter, the court granted the State\u2019s petition to revoke. On resentencing, the court sentenced defendant to three years in prison for the driving-under-the-influence-of-alcohol count and two years in prison for the driving-while-license-revoked count, to be served concurrently. Like the judgment order, the sentencing order incorrectly states that defendant\u2019s conviction of driving under the influence of alcohol was a Class 2 felony. Defendant was given credit against both sentences for 91 days\u2019 time served.\nDefendant first points out that the trial court erred in characterizing his conviction of driving under the influence of alcohol as a Class 2 felony. A third violation of section 11 \u2014 501 is a Class 3 felony under section 11 \u2014 501(c\u20141)(2) of the Code (625 ILCS 5/11\u2014 501(c \u2014 1)(2) (West 2002)), not a Class 2 felony as both the judgment order and the sentencing order state. Defendant argues and the State agrees that we should correct the orders to reflect that defendant has been convicted only of a Class 3 felony. We modify defendant\u2019s judgment and sentencing orders to reflect that he has been convicted of a Class 3 felony.\nDefendant further argues that we should modify his sentence from three years to two years because two years is the minimum sentence for a Class 3 felony. See 730 ILCS 5/5 \u2014 8\u20141(a)(6) (West 2002). The State responds that the issue of defendant\u2019s sentence is moot because defendant has already been released from prison. The State is correct that the question of the validity of a sentence becomes moot after the sentence is served. People v. Lieberman, 332 Ill. App. 3d 193, 196 (2002). However, the parties agree that defendant has not completed serving his period of mandatory supervised release. The period of mandatory supervised release is part of a defendant\u2019s sentence. Lieberman, 332 Ill. App. 3d at 196. In Lieberman, the State argued that the defendant\u2019s contention that the trial court erred in sentencing him to an extended term was moot because the defendant had finished serving his prison sentence. Lieberman, 332 Ill. App. 3d at 195. The First District Appellate Court rejected the State\u2019s argument because there was no evidence that the defendant had completed his term of mandatory supervised release. Lieberman, 332 Ill. App. 3d at 196. Here, it is undisputed that defendant is still serving the mandatory supervised release portion of his sentence. We find the instant case to be indistinguishable from Lieberman. The issue of defendant\u2019s sentence is not moot because defendant has not completed his sentence.\nDefendant contends that we should modify the trial court\u2019s order to impose the minimum sentence for a Class 3 felony because, in his view, the trial court evinced an intent to impose the minimum penalty available. The trial court stated: \u201c[lit will be the judgment of the court on Count 1 [that] the defendant will be sentenced to [the] minimum period in the Department of Corrections which is three years.\u201d While the trial court quite possibly would have sentenced defendant to the two-year minimum sentence for a Class 3 felony had it been aware of that option, we do not think that the above-quoted passage indicates a clear intent to do so. For this reason, we vacate defendant\u2019s sentence and remand to the trial court to enter a new sentence based on the guidelines for a Class 3 felony.\nNext, defendant argues that, upon revocation of his probation, he should have been given credit for 93 days\u2019 time served instead of 91 days. The State concedes that defendant should have been given credit for 93 days because two partial days served by defendant that were not counted should have been counted as full days. However, the State again argues that the issue is moot because defendant has been released from prison. We reject this argument for the same reason as the previous argument \u2014 defendant is still serving his period of mandatory supervised release. The State effectively makes no response to this point. It merely states, without explanation, that correcting defendant\u2019s credit for time served \u201cshould have little, if any, effect, on the defendant\u2019s MSB, obligations.\u201d We hold that the issue is not moot and modify the sentencing order to reflect that defendant is to receive 93 days\u2019 credit for time served.\nFinally, defendant argues that, pursuant to section 110 \u2014 14 of the Code of Criminal Procedure of 1963 (725 ILCS 5/110 \u2014 14 (West 2002)), he should have been given $5-per-day credit for time served against an assessment ordered by the trial court. The assessment in question is a $100 \u201cfee\u201d that the trial court ordered because defendant\u2019s conviction was a second or subsequent conviction of driving under the influence of alcohol. 55 ILCS 5/5 \u2014 1101(d) (West 2002). Section 110 \u2014 14 of the Code of Criminal Procedure provides that \u201c[a]ny person incarcerated on a bailable offense who does not supply bail and against whom a fine is levied on conviction of such offense shall be allowed a credit of $5 for each day so incarcerated upon application of defendant.\u201d 725 ILCS 5/110 \u2014 14 (West 2002).\nWhether section 110 \u2014 14 is applicable to a particular assessment is a question of statutory construction. People v. Hare, 119 Ill. 2d 441, 447 (1988). The primary rule of statutory construction is to ascertain and give effect to the intent of the legislature, and that inquiry begins with the language of the statute. Hare, 119 Ill. 2d at 447. The plain language of section 110 \u2014 14 provides that a defendant receives credit for time served against a \u201cfine.\u201d 725 ILCS 5/110 \u2014 14 (West 2002), Section 110 \u2014 14, however, does not provide for credit against a \u201cfee\u201d or a \u201ccost.\u201d People v. White, 333 Ill. App. 3d 777, 782 (2002). As a means of determining legislative intent, case law has examined the substance of various assessments to determine whether they are more nearly \u201cfines\u201d or \u201cfees\u201d or \u201ccosts.\u201d See, e.g., People v. Littlejohn, 338 Ill. App. 3d 281 (2003); White, 333 Ill. App. 3d 777. Under this line of cases, a \u201cfine\u201d is a pecuniary punishment imposed as part of a criminal sentence. White, 333 Ill. App. 3d at 781. A \u201cfee,\u201d by contrast, is a charge for labor or services, especially professional services. White, 333 Ill. App. 3d at 781. A \u201ccost\u201d is a charge or fee taxed by a court, such as a filing fee, jury fee, courthouse fee, or reporter fee. A cost or fee is not punitive in nature but is a collateral consequence of the defendant\u2019s conviction that is compensatory in nature. White, 333 Ill. App. 3d at 781. We note, however, that, because the applicability of section 110 \u2014 14 to a particular assessment is a question of legislative intent, an assessment\u2019s substantive character as being more nearly a \u201cfine\u201d or a \u201cfee\u201d or a \u201ccost\u201d is relevant only to the extent that it is probative of legislative intent. Also relevant is the legislature\u2019s designation of the assessment as a \u201cfine,\u201d \u201cfee,\u201d or \u201ccost.\u201d\nThe assessment at issue was authorized by section 5 \u2014 1101(d) of the Counties Code (55 ILCS 5/5 \u2014 1101(d) (West 2002)). Section 5 \u2014 1101 provides in relevant part:\n\u201cAdditional fees to finance the court system. A county board may enact by ordinance or resolution the following fees:\n* * *\n(d) A $100 fee for the second and subsequent violations of Section 11 \u2014 501 of the Illinois Vehicle Code or violations of similar provisions contained in county or municipal ordinances committed in the county. The proceeds of this fee shall be placed in the county general fund and used to finance education programs related to driving under the influence of alcohol ***.\u201d 55 ILCS 5/5 \u2014 1101 (West 2002).\nThis language, by its repeated use of the word \u201cfee\u201d and its description of a nonpunitive purpose, indicates an intent on the part of the legislature that an assessment made under section 5 \u2014 1101(d) be treated as a fee and not a fine. We conclude that the legislature did not intend the $5-per-day credit for time served provided for in section 110 \u2014 14 to apply to \u201cfees\u201d imposed under section 5 \u2014 1101(d). Accordingly, defendant is not entitled to $5-per-day credit against the $100 fee imposed by the trial court.\nFor the foregoing reasons, we modify the judgment order and sentencing order to reflect the fact that defendant has been convicted of a Class 3 felony and modify the sentencing order to reflect that defendant is to receive 93 days\u2019 credit for time served. We also vacate the part of the sentencing order specifying the length of defendant\u2019s sentence on the driving-under-thfe-influence-of-alcohol count and remand to the trial court with directions to enter a new sentence based on the guidelines for a Class 3 felony. Finally, we affirm the trial court\u2019s decision not to give defendant $5-per-day credit against the fee it imposed.\nAffirmed in part as modified and vacated in part; cause remanded with directions.\nBOWMAN and GEOMETER, JJ\u201e concur.", "type": "majority", "author": "JUSTICE O\u2019MALLEY" } ], "attorneys": [ "G. Joseph Weller and Thomas A. Lilien, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.", "Joseph E. Birkett, State\u2019s Attorney, of Wheaton (Martin E Moltz, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), and Barry W Jacobs, of Chicago, for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EPIFANIO M. ELIZALDE, Defendant-Appellant.\nSecond District\nNo. 2-02-0605\nOpinion filed December 3, 2003.\nG. Joseph Weller and Thomas A. Lilien, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.\nJoseph E. Birkett, State\u2019s Attorney, of Wheaton (Martin E Moltz, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), and Barry W Jacobs, of Chicago, for the People." }, "file_name": "0678-01", "first_page_order": 696, "last_page_order": 701 }