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No. 3--01--0328

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2002

The defendant, Gaylord Gathing, was convicted in a benchtrial of unlawful possession of a controlled substance with theintent to deliver (720 ILCS 570/401(a)(2)(A) (West 2000)), andsentenced to six years in prison. The defendant was ordered topay a $3,000 drug assessment, a $100 laboratory fee, and courtcosts. The court ordered the Department of Corrections (DOC) towithhold up to 50% from the defendant's monthly correctionsincome to pay the levies. On appeal, the defendant argues thathe should receive monetary credit for time spent in presentencecustody, that his laboratory fee should only have been $50, andthat the court lacked the authority to order the Department ofCorrections to withhold his wages.

The defendant was charged by information with unlawfulpossession of a controlled substance with the intent to deliver(720 ILCS 570/401(a)(2)(A) (West 2000)), a Class X felony. Theinformation was superceded by an indictment and the caseproceeded to a bench trial.

According to the testimony, the police received a tip onAugust 14, 2000, that the defendant was selling cocaine from amotel room in Kankakee, Illinois. At the motel, the policeencountered the defendant and found him in possession of aprescription vial that contained 1.2 grams of cocaine and morethan $900 in currency. In the defendant's room, the policediscovered another 29.7 grams of cocaine.

The trial court convicted the defendant of the chargedoffense and sentenced him to a six-year term of imprisonment. Additionally, the court imposed a $3,000 drug assessment (720ILCS 570/411.2(a)(1) (West 2000)), a $100 laboratory fee (730ILCS 5/5--9--1.4(b) (West 2000)), and court costs. The courtawarded the defendant 239 days of presentence incarcerationcredit to be applied toward his prison sentence, but the courtdid not order that credit to offset the drug assessment. Inaddition, the court ordered the DOC to withhold up to 50% of thedefendant's monthly corrections income for application to hisdrug assessment.

The defendant appeals, arguing that (1) he should receivemonetary credit for time spent in presentence custody, (2) hislaboratory fee should only have been $50, and (3) the courtlacked the authority to order the DOC to withhold his correctionswages.

Section 110--14 of the Code of Criminal Procedure of 1963(Code) (725 ILCS 5/110--14 (West 2000)) provides that a defendantis entitled to a credit of $5 for each day of presentenceincarceration against fines imposed as a result of a conviction. 725 ILCS 5/110--14 (West 2000). The defendant contends,therefore, that this court should reduce his drug assessment by$1,195 to reflect the defendant's monetary credit for his 239days of presentence incarceration.

The State retorts that the defendant's mandatory drugassessment is not a fine; thus, the credit provision in section110--14 of the Code is not applicable. In support of itsargument, the State notes that the Illinois Appellate Court hasheld that the presentence incarceration credit did not applytoward a "surcharge" imposed in accord with the Violent CrimeVictims Assistance Fund. People v. Williams, 142 Ill. App. 3d266, 491 N.E.2d 941 (1986). However, this court in People v.Brown, 242 Ill. App. 3d 465, 466, 610 N.E.2d 776, 777 (1993),held that the credit provision in section 110--14 of the Codeapplies to the mandatory drug assessment. According to Brown,because the legislature did not specifically exclude theapplication of credits toward the mandatory drug assessment, thecredit created by section 110--14 of the Code should be used tooffset the assessment. Brown, 242 Ill. App. 3d at 466, 610N.E.2d at 777. The State maintains that Brown was decidedincorrectly.

Whether the defendant is entitled to credit against hismandatory drug assessment is a question of statutoryinterpretation. The primary goal of statutory interpretation isto ascertain and give effect to the legislature's intent. Kraft,Inc. v. Edgar, 138 Ill. 2d 178, 189, 561 N.E.2d 656, 661 (1990). The best indication of legislative intent is the statutorylanguage, given its plain and ordinary meaning. IllinoisGraphics Co. v. Nickum, 159 Ill. 2d 469, 479, 639 N.E.2d 1282,1287 (1994).

Black's Law Dictionary defines "assessment" as the"[i]mposition of something, such as a tax or fine, according toan established rate; the tax or fine so imposed." Black's LawDictionary 111 (7th ed. 1999). A fine is defined as "[a]pecuniary criminal punishment or civil penalty payable to thepublic treasury." Black's Law Dictionary 647 (7th ed. 1999).

The assessment enacted in section 411.2(a)(1) of theIllinois Controlled Substances Act (Act) is consistent with thedefinition of a fine. Penalties ranging from $3,000 to $200 areestablished for drug offenses depending upon theirclassification. 720 ILCS 570/411.2(a) (West 2000). Payment ofthe assessment is to be forwarded by the circuit court clerk tothe State Treasurer for deposit in the Drug Treatment Fund"within the State Treasury." 720 ILCS 570/411.2(h) (West 2000). We conclude that the plain and ordinary meaning of "assessment"as that term is used in section 411.2 of the Act supports theBrown court's conclusion that the mandatory drug assessment is inthe nature of a fine and is properly offset by the presentencecredit created by section 110--14 of the Code. Consequently, thedefendant's drug assessment must be reduced by $1,195.

Next, the defendant contends that the trial court lacked theauthority to withhold his corrections wages to pay the monetaryobligations ordered by the trial court. Section 5--9--4 of theUnified Code of Corrections (730 ILCS 5/5--9--4 (West 2000))allows a court to enter an order of withholding to collect theamount of a fine imposed on an offender. Consequently, the trialcourt had authority to order the defendant's income withheld topay the mandatory drug assessment.

However, the withholding order is unenforceable for tworeasons. First, the withholding order, allowing the withholdingof up to 50% of the defendant's income, exceeds the maximum wagededuction allowed by statute. Section 12--803 of the Code ofCivil Procedure (735 ILCS 5/12--803 (West 2000)) provides thatthe maximum wages subject to collection shall not exceed thelesser of (1) 15% of the debtor's gross weekly wages or (2) theamount by which disposable earnings for a week exceed the totalof 45 times the federal minimum hourly wage. See People v.Despenza, 318 Ill. App. 3d 1155, 1157, 744 N.E.2d 912, 914(2001). Second, it appears that no wage deduction proceedingunder the Code of Civil Procedure was conducted in thiscircumstance. In the absence of a wage deduction proceeding, andwhere the withholding order was merely a part of the sentencingorder, the order for withholding was void. People v. Mancilla,331 Ill. App. 3d 35, 39, 770 N.E.2d 1262, 1265 (2002). To obtainan income withholding order, the Code of Civil Procedure providesfor the issuance of a summons against the employer (735 ILCS5/12--805 (West 2000)), the consideration of offsetting andadverse claims (735 ILCS 5/12--809, 12--810 (West 2000)), and atrial conducted as in other civil cases (735 ILCS 5/12--811(c)(West 2000)). Accordingly, we vacate the withholding orderentered by the trial court.

Finally, the defendant was assessed a $100 laboratory feeafter he was convicted in this case. However, section 5--9--1.4(b) of the Unified Code of Corrections (730 ILCS 5/5--9--1.4(b)(West 2000)) only authorizes a $50 fee for each offense forwhich a defendant is convicted. There was only one offense inthis case and the State has conceded that the laboratory feeshould have been $50, rather than $100 as ordered by the trialcourt.

For the foregoing reasons, we affirm the defendant'sconviction and prison sentence but vacate the withholding order. Furthermore, we reduce the defendant's mandatory drug assessmentby $1,195 and his laboratory fee to $50.

Affirmed in part as modified; vacated in part.

LYTTON, P.J., and MCDADE, J., concurred.