Criminal Law

DNA analysis fee is a fee, not a fine, and is thus not subejct to monetary credit for time served in custody prior to sentencing. DNA analysis fee is not imposed on a defendant as any type of punishment, but is used to cover costs incurred in collecting and testing DNA sample taken from a defendant convicted of a qualifying offense, and is thus truly a fee. (HUTCHINSON and ZENOFF, concurring.)

After bench trial, Defendant was convicted of escape. After being advised that he was under arrest, after altercation about getting water turned back on at a trailer, police officer grabbed Defendant, forcefully moved him to hood of squad car, and then reached for his handcuffs, when Defendant slipped away, and then ran away. Officer exercised sufficient amount of control over Defendant such that Defendant was lawfully restrained notwithstanding his resistance, and thus was in lawful custody at time of his escape. (WRIGHT, concurring; McDADE, dissenting.)

Defendant was convicted in May 2009, after jury trial, of criminal sexual assault of his 14-year-old stepdaughter. Court took judicial notice of and stated to jury that Defendant had failed to appear for his final pretrial hearing in 2006, arrest warrant was issued, and he was arrested in January 2009 trying to enter U.S. from Mexico and extradited to Illinois. Court did not err, as facts stated are probative as to Defendant's guilt, and jury heard argument that circumstances other than consciousness of guilt, may have triggered Defendant's departure from U.S. Court relied upon documents furnished by sister jurisdiction, and no indication that court was mistaken as to facts stated. (STEIGMANN and POPE, concurring.)

In FOIA action, court ordered Defendant State's Attorney to provide Plaintiff transcripts of grand jury proceedings from his 1994 criminal case, for which he had been convicted and was serving sentences of 70 years and 30 years. Court improperly awarded Plaintiff his attorney's fees for undertaking the FOIA action. Section 112-6(c)(3) of Code of Criminal Procedure, and not FOIA, is proper vehicle for obtaining grand jury transcripts, as Code entitles Plaintiff only to a copy of grand jury transcripts, but does not allow him to recover his fees. (HOLDRIDGE, concurring; LYTTON, dissenting.)

Defendant was charged with telephone harassment for calling his estranged wife and threatening to kill her. Court improperly excluded evidence of content of alleged harassing phone call on basis that it was obtained in violation of eavesdropping statute. Defendant alleged that wife had placed phone call on her cell phone's speakerphone so that her friend could hear. Use of speakerphone feature on cell phone does not transform phone into eavesdropping device under eavesdropping statute, as it did not functionally alter phone's ability to transmit and receive sounds, and speakerphone is not a separate device. (HUTCHINSON and ZENOFF, concurring.)

After completing probation for possession of cannabis, Defendant, a permanent resident alien, learned that his guilty plea and sentence subjected him to deportation. Defendant lacked standing to file postconviction petition, because at time of filing petition he was no longer "imprisoned in the penitentiary" as required by Post-Conviction Hearing Act. The "frivolous or patently without merit" standard for dismissing postconviction petition at first stage of proceedings encompasses the issue of standing. (MURPHY and STEELE, concurring.)

Strict compliance with Rule 604(d) is required. All defense counsel, not limited to appointed counsel and indigent defendants, who represent a defendant after judgment on guilty plea are obligated to file Rule 604(d) certificate to accompany a motion to withdraw guilty plea or to reconsider sentence. If counsel has not filed a Rule 604(d) certificate meeting requirements of Rule, proper remedy is to grant continuance to allow counsel to prepare certificate complying with Rule. (KNECHT and McCULLOUGH, concurring.)

(Court opinion corrected 8/24/11.) State's motion for interlocutory appeal of court's ruling, denying State's motion for admissibility of hearsay evidence under common law forfeiture by wrongdoing exception, was untimely filed. State had ample grounds to file notice of appeal or motion to reconsider within 30 days of court's order, but failed to do so, and no material change in facts or law occurred; thus, appellate court is without jurisdiction to consider that issue. Court's ruling in limine excluding evidence of other crimes allegedly committed by Defendant was not arbitrary or unreasonable. As other alleged offenses were excessively remote in time and differed from present charges in certain key respects, the probative value of such evidence was outweighed by prejudice to Defendant. Court properly barred State's expert, a divorce attorney, from testifying as to how judge would likely order of distribution of marital assets had Defendant's wife lived, or as to what Defendant's divorce attorney would likely have told Defendant to expect as to outcome of divorce proceeding. (SCHMIDT, concurring; CARTER, concurring in part and dissenting in part.)