People v. Nicholls

• Decision Date: 23 March 1978
• Docket Number: No. 49389,49389
• Parties: , 15 Ill.Dec. 759 The PEOPLE of the State of Illinois, Appellee, v. Ernest Lloyd NICHOLLS, Appellant.
• Court: Illinois Supreme Court

Page 194

374 N.E.2d 194

71 Ill.2d 166, 15 Ill.Dec. 759

The PEOPLE of the State of Illinois, Appellee, v. Ernest Lloyd NICHOLLS, Appellant.

No. 49389.

Supreme Court of Illinois.

March 23, 1978.

Michael J. Rosborough, Deputy State App. Defender, Mount Vernon, for appellant.

William J. Scott, Atty. Gen., Springfield, Michael J. Henshaw, State's Atty., Harrisburg, Kelly D. Long, State's Atty., Hillsboro, Howard L. Hood, State's Atty., Murphysboro, Nicholas G. Byron, State's Atty., Edwardsville, W. C. Spomer, State's Atty., Cairo, Robert H. Rice, State's Atty., Belleville, Herbert J. Lantz, Jr., State's Atty., Chester, Robert F. A. Stocke, State's Atty., Louisville, and Frank G. Schniederjon, State's Atty., Effingham (Donald B. Mackay and Charles H. Levad, Asst. Attys. Gen., and Bruce D. Irish and Robert J. Anderson, Ill. State's Attys. Ass'n, Palatine, of counsel), for the People.

RYAN, Justice:

Defendant, Ernest Nicholls, was found guilty of murder and sentenced to 100 to 150 years in the penitentiary. On direct appeal to this court, his conviction was affirmed (People v. Nicholls (1970), 44 Ill.2d 533, 256 N.E.2d 818). His petition for post- conviction relief was denied by the circuit court of Madison County. He appealed, in forma pauperis, and the Appellate Court for the Fifth District affirmed the denial (People v. Nicholls (1975) 33 Ill.App.3d 650, 341 N.E.2d 754). Shortly thereafter the State filed petitions in the Appellate Court for the Fifth District in 28 criminal cases, including that of defendant Nicholls, in which the defendants had been unsuccessful in their appeals in that appellate court. The petitions sought judgment for State's Attorneys' fees of $60 in each case ($50 for defending the appeal and $10 per diem fee) (Ill.Rev.Stat.1975, ch. 53, par. 8). All 28 petitions were consolidated for hearing and disposition. In a supplemental opinion the appellate court held that the State is entitled to have the State's Attorneys' fees assessed against unsuccessful criminal appellants, including indigents. One justice dissented. People v. Nicholls (1977), 45 Ill.App.3d 312, 4 Ill.Dec. 143, 359 N.E.2d 1095.

All of the issues decided by the appellate court and argued in this court were involved in the 28 consolidated cases. However, the supplemental opinion directed that it be filed only in the defendant Nicholls' case and that similar orders be entered in the other cases. Review in this court has been sought only by Nicholls. Due to the nature of the offense of which he was convicted and the sentence imposed, it is highly unlikely that any questions concerning satisfaction of a judgment for costs from bail is relevant to this case. Also, certain other issues raised are not relevant here. However, these issues are relevant to some of the other 27 cases that were considered with the Nicholls case in the appellate court, and further proceedings in those cases have been stayed pending our disposition of this case. We will therefore consider all of the issues that have been raised on appeal.

The issues which the defendant has presented to this court are:

(1) Whether the State's Attorney's fee for defending an unsuccessful appeal by a convicted criminal defendant may be assessed as costs;

(2) Whether a bail deposit posted for an accused may be used to satisfy the obligation for the State's Attorney's fee, notwithstanding the defendant's alleged indigency;

(3) Whether the State's Attorney is entitled to his fee when a convicted defendant is partially successful on appeal.

Several statutory provisions are relevant. The criminal costs statute provides:

"When any person is convicted of an offense under any statute * * * the court shall give judgment that the offender pay the costs of the prosecution." (Ill.Rev.Stat.1975, ch. 38, par. 180-3.)

Section 8 of "An Act concerning fees and salaries * * *" provides:

"State's attorneys shall be entitled to the following fees:

For each case of appeal taken * * * to the Supreme or Appellate Court * * *, $50.

For each day actually employed in the trial of a case, $10; * * *.

All the foregoing fees shall be taxed as costs to be collected from the defendant, if possible, upon conviction. * * * " (Ill.Rev.Stat.1975, ch. 53, par. 8.)

Section 22 of "An Act to revise the law in relation to costs" provides:

"If any person shall take an appeal, * * * and the same judgment be affirmed * * *, the appellee shall recover his costs, and have execution therefor; * * *." (Ill.Rev.Stat.1975, ch. 33, par. 22.)

Section 25 of the latter act provides:

"The clerk of any court in this state is hereby authorized and required to tax and subscribe all bills of costs arising in any cause or proceeding instituted in which he is clerk, agreeably to the rates which shall, for the time being, be allowed or specified by law; and shall in no case allow any item or charge unless he shall be satisfied that the service for which it was made was actually performed in the cause." Ill.Rev.Stat.1975, ch. 33, par. 25.

The defendant correctly notes that the allowance and recovery of costs, being unknown at common law, rests entirely upon the statutory provisions, which must be strictly construed (Galpin v. City of Chicago (1911), 249 Ill. 554, 556, 94 N.E. 961). Numerous jurisdictions allow the assessment of prosecution costs, but since such action is based on statute, interpretations of what constitutes allowable costs and when they may be assessed vary widely. (See Annot., 65 A.L.R.2d 854 (1959); Comment, Charging Costs of Prosecution to the Defendant, 59 Geo.L.J. 991 (1971).) In Illinois, basic authority for the assessment for the prosecution costs against defendant is found in the criminal costs statute (Ill.Rev.Stat.1975, ch. 38, par. 180-3), quoted above.

In Corbin v. People (1893), 52 Ill.App. 355, 357, "costs of the prosecution," under the statute involved here, were held to be "all the costs and fees legally earned and taxable in the case." The court in Corbin also stated:

"When a defendant is convicted the judgment is that he pay the fees thus appearing on the fee book, subject, of course, to his right to question the correctness of the bill by motion to re-tax, or by replevin of the fee bill. A judgment for the costs is incidental to a judgment of conviction. Moody v. People, 20 Ill. 315." 52 Ill.App. 355, 357.

The above-quoted statutory provisions are sufficiently inclusive to authorize and, in fact, direct the clerk to tax as costs and the judgment to include, the specified fees on appeal, as well as at the original trial of the case.

The defendant argues that section 8 of "An Act concerning fees and salaries" (Ill.Rev.Stat.1975, ch. 53, par. 8) was originally enacted to provide compensation to State's Attorneys prior to the time that they received salaries. Since the office of the State's Attorney is a salaried position (Ill.Rev.Stat.1975, ch. 53, par. 7), defendant contends that section 8 is obsolete and should not be applied to the purpose of reimbursing the State for expenses in defending appeals. This court has previously rejected this argument. (See People v. Kawoleski (1923), 310 Ill. 498, 142 N.E. 169.) Also, the fact that the section of the statute providing for State's Attorneys' fees has not been repealed but was, in fact, amended by the legislature as recently as 1975 (Pub. Act 79-645, sec. 1) evidences its current viability. In summary, we believe that the above-quoted statutory provisions, when read together, indicate a legislative scheme which authorizes the assessment of State's Attorneys' fees as costs in the appellate court against an unsuccessful criminal appellant upon affirmance of his conviction.

The question of whether an indigent can be assessed these fees and whether the same may be incorporated as part of the affirmance judgment of the appellate court against an indigent requires an examination of the various sections of the statutes relating to costs in litigation involving poor persons. Section 5 of "An Act to revise the law in relation to costs" (Ill.Rev.Stat.1975, ch. 33, par. 5) provides:

"If any court shall, before or after the commencement of any suit, be satisfied that the plaintiff or defendant is a poor person, and unable to prosecute or defend suit and pay the costs and expenses thereof, the court may, in its discretion, permit him to commence and prosecute his action, or defend suit, as a poor person; and thereupon such person shall have all the necessary writs, process, appearances and proceedings, as in other cases, without fees or charges. The court may assign to such person counsel, who, as well as all other officers of the court, shall perform their duties in such suit without any fees, charge or reward. If judgment be entered for the plaintiff or defendant there shall be judgment for his costs; which costs shall be collected for the use of the officers. If the suit is settled without the entry of judgment, the party who has thus been permitted to sue or defend as a poor person shall nevertheless be under the duty of paying forthwith to the Clerk of the Court and the Sheriff respectively, out of any moneys or property received by him or on his account as the proceeds of any such settlement, the amount of all fees and charges which but for the leave given to sue or defend as a poor person, such party would have been required to advance to such officers respectively." (Emphasis added.)

The defendant argues that this provision indicates that indigent defendants may not be taxed costs or fees. We disagree. As the State points out, the statute provides that if the poor person recovers judgment, costs are to be collected for the officers. If the suit is settled, the poor person is obligated to apply any proceeds to pay all fees and charges which he would normally have been required to pay. In addition, section 5a of the Act creates a lien in favor of the clerk of the court and the sheriff upon every claim or demand and the proceeds of a...