THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEONARD JAMISON, Defendant-Appellant, 365 Ill. App. 3d 778

JUSTICE THEIS delivered the opinion of the court: Following a bench trial, defendant Leonard Jamison was convicted of burglary and sentenced to six years’ imprisonment. On appeal, defendant argues: (1) the trial court erred in imposing a $20 fine against him that was not permitted by law; (2) the court erred in failing to award him $5-per-day presentence credit toward the $4 additional penalty assessed against him; and (3) the compulsory extraction and perpetual storing of his DNA under

section 5 — 4—3 of the Unified Code of Corrections (the Code) (730 ILCS 5/5 — 4—3 (West 2002)) violated his fourth amendment right to be free from unreasonable searches. For the following reasons, we affirm as modified. Because defendant does not challenge the evidence to sustain his conviction, we briefly set forth a

summary of the facts underlying his conviction. The evidence at trial established that defendant was observed closing the door of Mark Wheeler’s Ford Explorer on November 30, 2003. Wheeler then discovered three rented DVDs were missing from the front seat of his car. When defendant was stopped by police shortly thereafter for a traffic violation, Wheeler informed the officer of the theft. The plastic bag containing these DVDs and the receipt bearing Wheeler’s name were found in defendant’s car. Defendant did not have permission to enter Wheeler’s vehicle or take the DVDs.

After the court found defendant guilty of burglary, it denied defendant’s motion for a new trial. At a subsequent sentencing hearing, the court then sentenced defendant as a Class X offender to six years’ imprisonment and assessed costs and fees against defendant totaling $549. Following sentencing, defendant did not file a motion to reconsider or reduce his sentence and, thus, never raised an objection regarding fines or credit due to him.

In fact, defense counsel informed the trial court of the appropriate monetary charges to be assessed against defendant stating, “Judge, I’ll prepare a DNA order, and the costs are going to be $549.00” Defendant then filed this timely appeal. ANALYSIS Defendant contends that the compulsory extraction and subsequent storing of his DNA pursuant to

section 5 — 4—3 of the Code (730 ILCS 5/5 — 4—3 (West 2004)) constitutes an unreasonable search, violating his fourth amendment rights. Our supreme court recently rejected this exact claim and upheld the constitutionality of the statute in People v. Garvin, 219 Ill. 2d 104 (2006). Therefore, defendant’s argument fails. Defendant next challenges the court’s imposition of the $20 fine for the Violent Crime Victims Assistance Fund (725 ILCS 240/ 10(c)(2) (West 2004)).

He argues that it was erroneously assessed because the trial court also imposed a $4 fine for the Traffic and Criminal Conviction Surcharge Fund (730 ILCS 5/5 — 9—l(c—9) (West 2004)), and the $20 fine may only be imposed if “no other fines” are imposed (725 ILCS 240/10(c)(2) (West 2004)). Whether defendant is entitled to the credit is a question of statutory

interpretation. The primary rule of statutory construction is to ascertain and give effect to the intent of the legislature and that inquiry begins with the plain and ordinary meaning of the statute. People v. Campa, 217 Ill. 2d 243, 252, 840 N.E.2d 1157, 1164 (2005). Although defendant is correct that the $20 fine applies only where “no other fine is imposed” (725 ILCS 240/10(c) (West 2004)), he misconstrues the nature of the $4 additional penalty as set forth in

section 5 — 9—l(c—9) of the Code (730 ILCS 5/5 — 9—1 (c — 9) (West 2004)).

The statute provides in pertinent part as follows: “(c — 9) There shall be added to every fine imposed in sentencing for a criminal *** offense, *** an additional penalty of $4 imposed. *** Such additional penalty of $4 shall be assessed by the court imposing the fine and shall be collected by the circuit clerk in addition to any other fine, costs, fees, and penalties in the case. *** The additional penalty of $4 shall be in addition to any other fine, costs, fees, and penalties and shall not reduce or affect the distribution of any other fine, costs, fees, and penalties.” (Emphasis added.) 730 ILCS 5/5 — 9—l(c—9) (West 2004).

Thus, the plain language of the statute provides that the $4 assessment is an amount to be surcharged as an additional penalty; it is considered after the imposition of any basic fines provided for by other legislation. Accordingly, in the present case, after the imposition of the $20 fine, an additional penalty of $4 was surcharged and did not reduce or affect the distribution of the $20 fine. Therefore, the circuit court properly assessed both the $20 fine and the $4 additional penalty.

Defendant next contends that the circuit court erred in failing to afford him a $5-per-day credit against the $4 additional penalty for the 31 days he spent in custody prior to sentencing. Defendant did not ask the circuit court to offset this monetary assessment with a $5-per-day credit for the days he spent in custody. Nevertheless, we address this issue because defendant may raise the issue of credit on appeal even though he has not first applied for the credit in the circuit court. People v. Woodard, 175 Ill. 2d 435, 457-58, 677 N.E.2d 935, 946 (1997). Under

section 110 — 14 of the Code of Criminal Procedure of 1963, for each day or part of a day spent in custody before sentencing, a defendant is entitled to a credit of $5 against fines imposed as a result of the conviction. 725 ILCS 5/110 — 14 (West 2004). Whether

section 110 — 14 applies to a particular amount is a question of statutory construction. People v. Hare, 119 Ill. 2d 441, 447, 519 N.E.2d 879, 881 (1988). The plain language of

section 110 — 14 provides that the credit is limited to “fines” and does not apply to any other amount such as costs or fees. 725 ILCS 5/110 — 14 (West 2002); People v. Stewart, 343 Ill. App. 3d 963, 980, 799 N.E.2d 1011, 1025 (2003).

Section 5 — 9— l(c — 9) imposes an “additional penalty” of $4 to be remitted to the State Treasurer and deposited into the Traffic and Criminal Conviction Surcharge Fund (Fund). 730 ILCS 5/5 — 9—l(c—9) (West 2004).

Section 110 — 14 does not explicitly provide for credit against such an “additional penalty.” 725 ILCS 5/110 — 14 (West 2004). To resolve this issue we must determine whether the legislature intended the penalty to be treated as a fine, that is, a pecuniary punishment imposed as part of a sentence, or something else, like a fee or court cost, which is a charge taxed by a court, compensatory in nature. People v. Elizalde, 344 Ill. App. 3d 678, 682, 800 N.E.2d 859, 863 (2003); People v. Littlejohn, 338 Ill. App. 3d 281, 283, 788 N.E.2d 339, 341 (2003).

The term “penalty” is defined as “[p]unishment imposed on a wrongdoer, esp. in the form of imprisonment or fine.” Black’s Law Dictionary 1153 (7th ed. 1999). Thus, the popularly understood meaning of “penalty” includes punishment in the form of a fine. Nevertheless, the State maintains that although the legislature uses the term “penalty” in the statute, it intended for penalties to be separate and distinct from fines and, therefore, not subject to the $5-per-day credit. In support of its argument, it cites People v. Williams, 142 Ill.

App. 3d 266, 275, 481 N.E.2d 941, 946 (1986), in which the court considered a similar subsection of a prior version of

section 5 — 9—1 and found that the statutory language in force at that time evinced a legislative intent to distinguish the amount payable from a fine. The State maintains that the same rationale can be applied here to hold that defendant is not entitled to credit on the $4. We find Williams inapposite because the present version of

section 5 — 9—1 differs significantly from the version at issue in Williams. At the time Williams was decided,

section 5 — 9—l(c—9) of the Code did not exist and the

section the court relied upon,

section 5 — 9—1(c), was drastically different. Compare Ill. Rev. Stat. 1987, ch. 38, par. 1005— 9 — 1(

c) with 730 ILCS 5/5 — 9—1(c). (West 2004).

Section 5 — 9—1(

c) provided that every fine shall include an amount payable to the Traffic and Criminal Conviction Surcharge Fund. Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 9—1(c). Whereas, the current version of

section 5 — 9— 1(

c) specifically refers to the amount assessed as an “additional penalty” and explicitly excludes the penalty from presentence credit. 730 ILCS 5/5 — 9—1(c) (West 2004). Thus, the holding in Williams, distinguishing the amount payable to the Fund from a fine, was based upon the statutory language then existing, and not based upon the current language of

section 5 — 9—1(

c) or (c — 9), which both assess a “penalty.” Furthermore, two months after Williams, in People v. Wilson, 144 Ill. App. 3d 290, 494 N.E.2d 849 (1986), the court, without discussing Williams, found that the amount payable to the Fund under

section 5 — 9—1(

c) was a surcharge on the basic fine as determined by other legislation, but that the surcharge had the same general characteristics as the basic fine to which it was attached. Wilson, 144 Ill. App. 3d at 293, 296, 494 N.E.2d at 851, 853. Accordingly, for all of the foregoing reasons, the State’s reliance on Williams is unpersuasive. Additionally, we reject the State’s argument that merely because the Fund was created for the purpose of reimbursing law enforcement agencies, the legislature did not intend for the money collected for this Fund to be treated as a fine.

The claim that all amounts assessed to reimburse the government are never treated as a fine is without foundation and is incorrect. Indeed, a portion of all fees, fines, costs, and additional penalties assessed are disbursed into the Traffic and Criminal Conviction Surcharge Fund. See 705 ILCS 105/27.6 (West 2004). Accordingly, the State’s argument lacks merit. Where there is no indication that the legislature intended to depart from the plain meaning of the statute, the additional penalty imposed on defendant is a pecuniary punishment in the nature of a fine. Thus, pursuant to

section 110 — 14, the fine is to be offset by the $5-per-day credit. We note that when the legislature has chosen to exclude an amount from presentence credit under

section 110 — 14, it has explicitly done so. See, e.g., 730 ILCS 5/5 — 9—1(c) (West 2004) (“additional penalty shall not he considered a part of the fine for purposes of any reduction in the fine for time served either before or after sentencing”); 730 ILCS 5/5 — 9—l(c—5) (West 2004) (“additional fee of $100 shall not be considered a part of the fine for purposes of any reduction in the fine for time served either before or after sentencing”). Had the legislature intended to exclude

section 5 — 9—l(c—9) from the $5-per-day credit, the legislature could have specifically made such an exclusion. See People v. Fort, 362 Ill. App. 3d 1, 6, 839 N.E.2d 1064, 1069 (2005) (applying the same rationale to allow credit against a drug assessment). Accordingly, pursuant to

section 110 — 14, defendant should be awarded a credit of $4 against his Traffic and Criminal Conviction Surcharge Fund penalty because the amount of the credit may not exceed the amount of the fine. 725 ILCS 5/110 — 14 (West 2004). The sentencing order of the circuit court of Cook County shall be modified to reflect this credit. We otherwise affirm defendant’s conviction and sentence. Affirmed as modified. HOFFMAN, EJ., and KARNEZIS, J., concur. We note that this $4 additional penalty was added to the statute effective June 20, 2003. Pub. Act 93 — 32, eff. June 20, 2003 (adding 730 ILCS 5/5 — 9— l(c — 9)). Thus, this

section was in effect at the time of defendant’s crime and conviction. However, the legislature later eliminated

section 5 — 9—l(c—9) in its entirety and replaced it with “(Blank)” effective August 22, 2005. Pub. Act 94 — 652, eff. August 22, 2005 (amending 730 ILCS 5/5 — 9—l(c—9)). Accordingly, this $4 additional penalty no longer exists.