People v. Johnson
State: Illinois
Court: 4th District Appellate
Docket No: 4-97-0580
Case Date: 06/26/1998
NO. 4-97-0580
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Champaign County
KOREY L. JOHNSON, ) No. 97CF864
Defendant-Appellant. )
) Honorable
) John G. Townsend,
) Judge Presiding.
_________________________________________________________________
JUSTICE STEIGMANN delivered the opinion of the court:
At a hearing in March 1997, the trial court ordered
defendant, Korey L. Johnson, to pay for the attorney appointed to
represent him on charges that he had violated the terms of his
probation, pursuant to section 113-3.1 of the Code of Criminal
Procedure of 1963 (Code) (725 ILCS 5/113-3.1 (West 1996)).
Defendant appeals the payment order, arguing that the court erred
by failing to conduct the statutorily required hearing on his
ability to pay. We agree and reverse and remand.
I. BACKGROUND
In April 1995, defendant pleaded guilty to burglary
(720 ILCS 5/19-1 (West 1994)) and was sentenced to 24 months'
probation. On March 10, 1997, the State filed a petition seeking
to revoke defendant's probation, and on March 24, 1997, the State
filed a supplemental petition to revoke.
On March 13 and 24, 1997, defendant appeared in court
on the petitions to revoke. On March 13, 1997, defendant asked
for court-appointed counsel and presented the trial court with a
financial affidavit in support of his request. On both dates,
the court appointed counsel for defendant and ordered him to pay
$300 at the rate of $30 per month for the court-appointed attor-
ney, pursuant to section 113-3.1 of the Code. In April 1997, the
court revoked defendant's probation. In May 1997, the court
sentenced defendant to 42 months in prison. Defendant appeals
only the payment orders, and the parties have stipulated on
appeal that the court did not conduct a hearing in compliance
with People v. Love, 177 Ill. 2d 550, 555, 687 N.E.2d 32, 35
(1997), before entering the payment orders at issue.
II. ANALYSIS
Defendant argues that the trial court erred by failing
to conduct a hearing on his ability to pay, as required by
section 113-3.1(a) of the Code (725 ILCS 5/113-3.1(a) (West
1996)). We agree. That section provides, in pertinent part, as
follows:
"Whenever *** the court appoints counsel
to represent a defendant, the court may order
the defendant to pay to the Clerk of the
Circuit Court a reasonable sum to reimburse
either the county or the State for such rep-
resentation. In a hearing to determine the
amount of the payment, the court shall con-
sider the affidavit prepared by the defendant
under Section 113-3 of this Code and any
other information pertaining to the
defendant's financial circumstances which may
be submitted by the parties." 725 ILCS
5/113-3.1(a) (West 1996).
Thus, the statute requires a trial court to conduct a
hearing regarding a defendant's financial resources to determine
his ability to pay for court-appointed counsel. Love, 177 Ill.
2d at 555, 687 N.E.2d at 35. The hearing is a safeguard designed
to ensure that a reimbursement order entered under section 113-
3.1 of the Code meets constitutional due process standards.
Love, 177 Ill. 2d at 564, 687 N.E.2d at 39. The supreme court
has further explained that "[t]he hearing must focus on the fore-
seeable ability of the defendant to pay reimbursement as well as
the costs of the representation provided." Love, 177 Ill. 2d at
563, 687 N.E.2d at 38. Thus, the statutorily required hearing
need only (1) provide the defendant with notice that the trial
court is considering imposing a payment order, pursuant to
section 113-3.1 of the Code, and (2) give the defendant an oppor-
tunity to present evidence regarding his ability to pay and other
relevant circumstances, and otherwise to be heard regarding
whether the court should impose such an order.
We emphasize that "notice" for purposes of this hearing
means only that the court should inform defendant in open court
immediately prior to the section 113-3.1 hearing of (1) the
court's intention to hold such a hearing, (2) what action the
court may take as a result of the hearing, and (3) the opportuni-
ty the defendant will have to present evidence and otherwise to
be heard regarding whether any payment order should be entered,
and if so, in what amount.
Because the trial court did not conduct a hearing as
required by section 113-3.1 of the Code before entering a payment
order under that section, we reverse the payment order entered
and remand for further proceedings consistent with the views
expressed herein.
III. CONCLUSION
For the reasons stated, we reverse the trial court's
payment order and remand for further proceedings consistent with
the views expressed herein.
Reversed and remanded.
GARMAN, P.J., and COOK, J., concur.
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