People v. Rowell

delivered the opinion of the court:

In March 2004, after a stipulated bench trial, the trial court found defendant, Howard L. Rowell, guilty of retail theft of property having a retail value exceeding $150 (720 ILCS 5/16A — 3(a) (West 2004)). Defendant filed a motion for judgment of acquittal or, in the alternative, motion in arrest of judgment, and the court denied the motion. In May 2004, the court sentenced defendant to 30 months’ probation. Defendant appeals. We affirm in part, vacate in part, and remand with directions.

I. BACKGROUND

On August 26, 2003, defendant was charged with the misdemeanor offense of theft by deception (720 ILCS 5/16 — 1(a)(2) (West 2002)). The information alleged that defendant sold store product belonging to his employer, Electronics Boutique (EB), and kept the money for himself. On September 22, 2003, the theft-by-deception charge was dismissed. On September 25, 2003, the State filed an information charging defendant with the felony offense of retail theft of items valued at over $150. The information alleged that between July 15 and August 25, 2003, defendant knowingly took 15 electronic computer games valued at over $150 from EB, a retail mercantile establishment, with the intent to permanently deprive the merchant of the use or benefit of the property without paying the full retail value. On December 3, 2003, the State filed an information labeled “count 2,” which again charged defendant with felony retail theft from EB. Count II was similar to the original information but added that the stolen items were 15 “Xbox Brand Video Games” and defendant knowingly took these games “during a continuing course of conduct.”

On January 26, 2004, defense counsel requested a bench trial and indicated the parties may proceed on stipulated evidence. The trial court admonished defendant as to his right to a jury trial. Defendant indicated he understood his right and tendered a written waiver of the right to a jury trial.

On March 10, 2004, the trial court held a bench trial. At the trial, defense counsel agreed with the State that defendant was willing to stipulate to the following: three police reports, a written statement by defendant given to EB, a summary of the cost of the games that were stolen from EB, a videotaped statement by defendant, and the fact that EB is a retail mercantile establishment. The reports outlined the following facts. The manager of EB reported that management had suspected defendant, an employee, of stealing games, selling them to friends, and pocketing the sale proceeds. To confirm its suspicions, a loss-prevention officer made a purchase from defendant, who sold an item at a reduced price and pocketed the money. When confronted, defendant admitted to the loss-prevention officer and manager that he stole games for himself and sold games at reduced rates to friends and then kept the money. Defendant gave a written statement to EB outlining his thefts.

Defense counsel stated he would not present any additional evidence. The trial court read the reports and asked for argument. The State argued that defendant’s written statement showed defendant’s guilt of the theft of the 15 video games. Defendant acknowledged he had taken about $367 worth of games, and a store employee listed the amount at $430.85. Defense counsel argued that the case presented no factual dispute and directed the court to count II. The court noted that count I had not been dismissed, and defense counsel responded his argument applied to either count. Counsel then stated that the information, particularly count II, is flawed. Count II’s reference to a “continuing course of conduct” is not authorized by statute. Counsel argued that the most the evidence showed is “a bunch of misdemeanors, not a felony. I believe the felony is improperly charged here.” Counsel pointed to the fact that the games had been taken over a series of dates and that the State could not prove that the games were taken in one transaction. The State responded that the phrase “during his employment with EB games” was “somewhat telling on that issue.” The State also said that the officer went into the details of how defendant was taking items during the videotaped statement. The court took the matter under advisement.

On March 24, 2004, the trial court entered an order, without explanation, convicting defendant on count II. On April 15, 2004, defendant filed a motion for judgment of acquittal or, in the alternative, motion in arrest of judgment. In the motion, defendant argued that the State improperly aggregated the value of the games by alleging that the individual thefts of the games were “during a continuing course of conduct” when what is required is proof that the acts were “in furtherance of a single intention and design.” Defendant argued that the evidence did not prove a single intent or design and, at best, the evidence showed only multiple intents to take the games, which were individually valued at less than $150. Defendant claimed he should be acquitted of the felony charge. Also, defendant contended that the charging instrument was defective for failure to allege the specific felony mental state, in furtherance of a single intention and design, so the charge did not state an offense.

On May 24, 2004, the trial court responded to defendant’s motion as follows, “Well, the court looked at that issue, and I believe there is some case law that directly supports the court’s ruling on that, and the motion will be denied.” The court sentenced defendant to 30 months’ probation and 120 days in jail with 30 days to be served right away and the balance to be stayed pending review. The court also ordered defendant to pay $430.85 in restitution to EB and imposed the following fees, fines, and costs: “$200 [deoxyribonucleic acid (DNA)], $10 draw fee, $20 [Violent Crime Victims Assistance (VCVA)], $20 surcharge, $4 state[-]police fee.” Defense counsel also requested a $200 public-defender fee, which the court granted without discussion.

On May 26, 2004, the trial court granted the State’s motion to dismiss count I. This appeal followed.

II. ANALYSIS

On appeal, defendant presents nine issues for review. First, defendant argues that his felony conviction must be reduced to a misdemeanor because the State failed to prove the separate and individual thefts were in furtherance of a single intention and design. Second, defendant’s felony conviction must be vacated because the information failed to allege defendant’s conduct was in furtherance of a single intention and design and defendant was prejudiced by this failure. Third, defendant’s conviction must be vacated because he was not admonished pursuant to Supreme Court Rule 402 (177 Ill. 2d R. 402) and he was not admonished about the stipulations before his stipulated bench trial, which was tantamount to a guilty plea of misdemeanor retail theft. Fourth, defendant is entitled to two days’ sentence credit and a $5-a-day credit for time served to be applied against a $4 penalty imposed by the trial court. Fifth, the reimbursement order for counsel fees should be vacated because the court failed to conduct a hearing before entering the fee order. Sixth, the restitution amount should have been reduced by the value of the recovered video games. Seventh, the county-board fee should have been $40, the amount allowed at the time of the filing, not $100, the amount allowed at the time defendant was convicted. Eighth, the $10 DNA testing “draw fee,” the $20 fine surcharge, and the $4 penalty should not have been ordered. Ninth, the extraction and storage of defendant’s DNA violated his fourth-amendment right to be free from unreasonable searches and seizures.

A. Concessions

The State concedes the following issues. First, defendant is entitled to two days’ sentence credit and $10 credit to be applied against the $4 penalty imposed. Second, the trial court failed to hold a hearing to determine defendant’s ability to pay the reimbursement order for counsel fees, so that order should be vacated and we should remand for a hearing. Third, the $10 DNA-processing fee should be vacated, as should the $20 surcharge. We agree with these concessions.

Defendant was arrested on August 25 and released August 26, 2003, for misdemeanor theft. In September 2003, the misdemeanor was dismissed and replaced with a felony charge. Defendant argues he is entitled to sentencing credit for the two days he spent in custody for the misdemeanor charge. The State agrees that pursuant to subsection 5 — 8—7(c) of the Unified Code of Corrections (Corrections Code) (730 ILCS 5/5 — 8—7(c) (West 2004)), defendant is entitled to the two days. This provision states that “[a]n offender arrested on one charge and prosecuted on another charge for conduct which occurred prior to his arrest shall be given [sentence credit] *** for time spent in custody under the former charge not credited against another sentence.” 730 ILCS 5/5 — 8—7(c) (West 2002). Because the felony-theft charge, which resulted in a conviction and sentence, replaced the misdemeanor charge, defendant is entitled to the two days. See People v. Woznick, 209 Ill. App. 3d 1061, 1064, 568 N.E.2d 425, 427 (1991) (noting that council commentary demonstrates that section 5 — 8—7(c) applies when the offender is arrested on one charge and the original charge is dropped in favor of a new charge that results in conviction and imprisonment).

Defendant is also entitled to have the $4 state-police fee offset because section 110 — 14 of the Code of Criminal Procedure of 1963 (Criminal Code) provides that “[a]ny person incarcerated on a bailable offense who does not supply bail and against whom a fine is levied on conviction of such offense shall be allowed a credit of $5 for each day so incarcerated upon application of the defendant.” 725 ILCS 5/110 — 14 (West 2004). Because the $4 fee imposed pursuant to section 5 — 9—l(c—9) of the Corrections Code (730 ILCS 5/5 — 9—l(c—9) (West 2004)) is a fine, it should be offset by the $5-per-day credit. See People v. Jamison, 365 Ill. App. 3d 778, 782-83, 850 N.E.2d 846, 850-51 (2006).

The trial court also erred in ordering defendant to pay $200 in court-appointed counsel fees without first conducting a hearing on defendant’s ability to pay pursuant to section 113 — 3.1(a) of the Criminal Code. 725 ILCS 5/113 — 3.1(a) (West 2004). The Illinois Supreme Court has held that “section 113 — 3.1 requires that the trial court conduct a hearing into a defendant’s financial circumstances and find an ability to pay before it may order the defendant to pay reimbursement for appointed counsel.” People v. Love, 177 Ill. 2d 550, 563, 687 N.E.2d 32, 38 (1997). In this case, the court ordered defendant to pay $200 in counsel fees without any discussion. Because the court failed to conduct a hearing, we vacate the reimbursement order and remand to the trial court for a hearing to determine defendant’s ability to pay. See People v. Roberson, 335 Ill. App. 3d 798, 803-04, 780 N.E.2d 1144, 1148-49 (2002) (remanding for a hearing on the defendant’s ability to pay counsel fees where the notice requirements were not followed, defendant was not given the opportunity to present evidence, and the record did not indicate the trial court considered defendant’s financial affidavit).

Finally, the trial court imposed a $10 DNA-draw fee. This court has already determined that such a fee is not authorized by statute. People v. Hunter, 358 Ill. App. 3d 1085, 1094-95, 831 N.E.2d 1192, 1199 (2005) (holding that neither section 5 — 4—3(a) nor section 5 — 4— 3(j) of the Corrections Code (730 ILCS 5/5 — 4—3(a), (j) (West 2004)) authorizes a trial court to require a defendant to pay the cost of DNA collection). The court also erroneously imposed a $20 surcharge under section 5 — 9—1(c) of the Corrections Code. 730 ILCS 5/5 — 9—1(c) (West 2004). Section 5 — 9—1(c) adds to every fine imposed for a criminal offense “an additional penalty of $5 for each $40, or fraction thereof, of fine imposed.” 730 ILCS 5/5 — 9—1(c) (West 2004). Because no fines were imposed, let alone $160 in fines, the trial court was not authorized to impose a $20 surcharge. The $10 DNA-draw fee and $20 surcharge are vacated.

B. Sufficiency of the Evidence

Defendant argues that his felony retail-theft conviction must be reduced to a misdemeanor because the State failed to allege or prove that his conduct was in furtherance of a single intention and design. The State responds that evidence was sufficient to convict defendant of felony retail theft beyond a reasonable doubt.

Initially, we note that defendant argues that the standard of review should be de novo because the facts are not in dispute. The State, however, claims there is a factual dispute, namely, whether the facts support an inference that defendant took the games on individual impulses or pursuant to a single intention and design. If a factual dispute exists, this court should review the sufficiency of the evidence by looking at whether the evidence is “so unreasonable, improbable, or unsatisfactory as to justify a reasonable doubt of defendant’s guilt.” People v. Smith, 185 Ill. 2d 532, 542, 708 N.E.2d 365, 370 (1999).

While the entire bench trial consisted of stipulated evidence, the parties debated as to whether the evidence showed defendant’s conduct amounted to one transaction or a series of separate transactions. For the trial court to make this determination, it had to evaluate the facts presented and conclude whether a single transaction could be inferred. In reviewing defendant’s contention of error, this court must determine whether the evidence supports the trial court’s conclusion that a single transaction could be inferred. The Illinois Supreme Court has noted that “[wjhether the defendant acted in furtherance of a single intention and design and thus committed a single crime is a question of fact to be established at the trial of the case.” People v. Brenizer, 111 Ill. 2d 220, 228, 489 N.E.2d 862, 866 (1986). Because we are looking at whether the undisputed facts could give rise to an inference that defendant had a specific intent, we review a factual determination, and sufficiency-of-the-evidence review is appropriate.

To prove defendant guilty of felony retail theft in this case, the State must show that the amount of stolen property was over $150. 720 ILCS 5/16A — 10(3) (West 2004). In this case, defendant stole 15 games all worth less than $49.99 over a period of six weeks. This series of thefts, which otherwise may have constituted a series of misdemeanor thefts, may be charged as a single felony “when it is alleged that the acts were in furtherance of a single intention and design to obtain the property of a single owner.” Brenizer, 111 Ill. 2d at 226, 489 N.E.2d at 865; see also 725 ILCS 5/111 — 4(c) (West 2004). For the State to prove defendant guilty of the felony, it had to prove that the multiple acts of theft were in furtherance of a single intention and design.

The State failed to allege in the charging instrument or at the stipulated bench trial that defendant acted “in furtherance of a single intention and design.” Instead, the State mistakenly argued that defendant’s actions amounted to a “continuing course of conduct.” At the trial, defense counsel correctly argued that “continuing course of conduct” is not an element of the offense. Defense counsel went on to argue that the State had only shown a series of misdemeanors and had not shown defendant committed one felony. After taking the matter under advisement, the trial court determined that defendant did commit one felony as opposed to a series of misdemeanors. When defense counsel pointed out for the first time in a posttrial motion that the State failed to allege the single-intention-and-design element, the court stated that it considered that issue in determining that defendant committed a felony.

While the State’s failure to properly charge and argue the single-intention-and-design element of the felony is disturbing, the evidence nonetheless supports the inference that defendant acted with a single intention and design. Defendant took the 15 games from his employer during his employment over the span of approximately 42 days. Also, while not charged with these thefts, defendant admittedly sold games 25 times at reduced prices and pocketed the money. Defendant stated he stole because “[he has] money problems and didn’t think about the consequences that would come along with this.” Defendant spread out these two different types of thefts over the six to seven weeks that he had been employed with EB, which made it less likely that management would notice the missing money and merchandise.

Defendant argues that the fact that he stole the games over six weeks shows that the games were taken as the product of a number of individual impulses and that had he taken them all within a couple of days, the inference that he had a single plan would be stronger. The evidence, though, just as clearly shows that defendant had money troubles and he systematically stole small amounts of money and merchandise from his employer during most of his employment in a manner that was less likely to raise suspicion. Stealing the 15 games all at once or within a couple of days would have been much more noticeable and likely to immediately raise alarm. The evidence supports the inference that defendant stole the 15 games over a period of time with the single intention and design of stealing games he desired without raising too much suspicion. The fact that he was simultaneously stealing games and pocketing money during his short time as an employee supports the inference that he had a single intention and design to steal whatever he could from his employer.

Despite the State’s failure to correctly argue the elements of the felony theft, the trial court was aware of what needed to be proved based on its claim in the posttrial motion hearing. Further, because the evidence is not so unreasonable, improbable, or unsatisfactory as to justify a reasonable doubt of defendant’s guilt, we will not reverse defendant’s felony conviction.

C. The Charging Instrument

Defendant claims his felony retail-theft conviction must be vacated because the information filed by the State failed to allege an essential element of felony retail theft and defendant was prejudiced by the error.

As stated above, the State failed to properly allege in the information the essential element that defendant’s mental state was to act in furtherance of a single intention and design. Count II, the count of which defendant was convicted, alleged that on or about July 15, 2003, through August 25, 2003, defendant committed retail theft over $150, a Class 3 felony in violation of section 16A — 3(c) of the Criminal Code of 1961 (720 ILCS 5/16A — 3(c) (West 2004)):

“In that during a continuing course of conduct, he knowingly took possession of fifteen XBOX brand video games, which were items of merchandise offered for sale at [EB], a retail mercantile establishment, with the intent to permanently deprive said merchant of the possession, use or benefit of said merchandise, without paying the full retail value of said merchandise, said merchandise having a value exceeding $150.”

“The timing of a defendant’s challenge to a charging instrument that fails to state an offense has been considered significant in determining whether a defendant is entitled to reversal of his conviction on that ground.” People v. Benitez, 169 Ill. 2d 245, 257, 661 N.E.2d 344, 350 (1996). When defendant challenges a charging instrument for the first time after the commencement of trial, an error in the charging instrument will only require reversal where the error was prejudicial. People v. Cuadrado, 214 Ill. 2d 79, 86, 824 N.E.2d 214, 219 (2005). Under the prejudice standard, a charge will be sufficient if it “ ' “apprised the accused of the precise offense charged with sufficient specificity to prepare his defense and allow pleading a resulting conviction as a bar to future prosecutions arising out of the same conduct.” ’ ” Cuadrado, 214 Ill. 2d at 86-87, 824 N.E.2d at 219, quoting Benitez, 169 Ill. 2d at 257, 661 N.E.2d at 350, quoting People v. Gilmore, 63 Ill. 2d 23, 29, 344 N.E.2d 456, 460 (1976).

While we agree that the information was deficient in that the State failed to allege in the charging instrument an element of the offense, namely, the “in furtherance of a single intention and design” element, we find defendant has not shown prejudice.

Despite the missing element, defendant was apprised of the fact that he faced felony retail theft for stealing over $150 in merchandise from EB. Defendant knew that each game he stole was worth less than $50, so the State would have to link the individual thefts to prove the felony. Further, when the State added count II, it was clear from the “continuing course of conduct” addition that the State was focusing on aggregating the individual thefts to show they were all linked in order to get above the $150 minimum. Defendant clearly knew that the State had to show that the individual thefts were in essence one theft. Defendant’s knowledge is apparent as defense counsel argued at trial that the “continuing course of conduct” language was incorrect and argued that the State had not shown that the individual thefts were in any way linked. Defense counsel stated that the most the evidence showed was “a bunch of misdemeanors, not a felony.” Defendant essentially argued, therefore, that the State had not shown and could not show a single felony occurred.

Defendant nevertheless claims he was prejudiced at trial because while he knew the “continuing course of conduct” language was incorrect, he could not argue the lack of “in furtherance of a single-intention-and-design” evidence because he did not know about the single intention and design element. First, it is not clear how defense counsel would have prepared differently had he known the precise missing language. Defendant already argued that the evidence only showed a series of misdemeanors and not one felony. This is the same argument he makes now in his appeal. Also, defense counsel suddenly realized that “in furtherance of a single intention and design” was an element after defendant was convicted as he included that argument in a posttrial motion. Defendant was able, therefore, to present his argument to the trial court, and the trial court had the opportunity to vacate the felony conviction based on the missing-element argument. In ruling on the posttrial motion, the court stated that it considered the single-intention-and-design element and dismissed defendant’s posttrial motion.

Because defendant was not prejudiced by the deficient charging instrument, we affirm his conviction.

D. Admonishments

If this court does not vacate defendant’s conviction based on insufficient evidence or an insufficient charging instrument, defendant claims we must vacate the conviction because the trial court did not admonish him according to Illinois Supreme Court Rule 402 (177 Ill. 2d R. 402) at his stipulated bench trial, which he claimed was tantamount to a guilty plea of misdemeanor theft. Alternatively, defendant was not personally admonished about the State proceeding entirely on stipulations and his agreement to the stipulations was not obtained by the court.

First, defendant’s stipulated bench trial was not tantamount to a guilty plea requiring Rule 402 admonishments. In arguing he should have been admonished, defendant points to People v. Davis, 286 Ill. App. 3d 686, 676 N.E.2d 675 (1997). In arguing against the admonishments, the State points to People v. Horton, 143 Ill. 2d 11, 570 N.E.2d 320 (1991).

In Horton, the Supreme Court of Illinois reviewed a defendant’s two stipulated bench trials and determined that one trial was not tantamount to a guilty plea but the other trial was. Defendant was charged with armed robbery, armed violence, and aggravated battery in both trials. In his first stipulated bench trial, defense counsel stipulated to the State’s evidence and commented in closing arguments that the evidence was sufficient to convict, but counsel also presented and preserved a defense that the trial court should have granted defendant’s motions to quash arrest and suppress a lineup. Horton, 143 Ill. 2d at 14-16, 570 N.E.2d at 321-22. The court held that “a stipulated bench trial is not tantamount to a guilty plea if the defendant presented and preserved a defense.” Horton, 143 Ill. 2d at 22, 570 N.E.2d at 325. The court went on to hold, though, that the second stipulated bench trial was tantamount to a guilty plea despite the fact that defendant presented and preserved a defense because defense counsel “in fact stipulated to the sufficiency of the evidence to convict.” (Emphasis in original.) Horton, 143 Ill. 2d at 22, 570 N.E.2d at 325.

In this case, defense counsel never stipulated to the sufficiency of the evidence to convict. Defense counsel only stipulated to the reports, written statement, video confession, and fact that EB was a retail mercantile establishment. Counsel argued that “at most this evidence shows a bunch of misdemeanors” and “I don’t think the State can prove they were taken all in one chunk.” Further, counsel presented and preserved a defense that the evidence was insufficient to convict defendant of the charged offense because the State could not prove defendant stole items worth over $150 because the State could not show the games worth under $50 were taken all at once or in any way linked. Defense counsel also argued that the charging instrument was defective because it included the “continuing course of conduct” language.

In Davis, defense counsel stipulated to the facts on the two charges of improper lane usage and operating a motor vehicle when the defendant’s license was revoked for driving under the influence of alcohol. Defense counsel did not object when the State informed the court that the defendant admitted he was guilty of misdemeanor driving while license revoked and only contended that he is not guilty of felony driving while license revoked. Davis, 286 Ill. App. 3d at 687, 676 N.E.2d at 676. While the court acknowledged that the defendant did not stipulate that the evidence was sufficient to convict, the defendant also “did not present or preserve any defense” and the only issue in the case was “whether a prior summary suspension could be used to enhance the offense of driving while license revoked to a felony.” Davis, 286 Ill. App. 3d at 689, 676 N.E.2d at 677-78.

In Davis, defense counsel did not argue that the facts were insufficient to establish that the defendant was guilty of the felony rather than the misdemeanor. Instead, defense counsel argued the statute could not be interpreted to convict the defendant of a felony. In this case, defense counsel essentially argued that the evidence was not sufficient to show that defendant took the 15 items at once or that his taking of the 15 items could be lumped together to reach the $150 minimum. Unlike in Davis where the issue was how the statute should be interpreted, the issue in this case was whether the stipulated facts were sufficient to support an element of the charge.

Because defendant did not stipulate to the sufficiency of the evidence to convict, contested the sufficiency of the evidence to convict of the crime charged, and presented and preserved a defense, the trial court was not required to issue Rule 402 admonishments.

Defendant, citing People v. Campbell, 208 Ill. 2d 203, 221, 802 N.E.2d 1205, 1215 (2003), argues, in the alternative, that this court must reverse because defendant was not personally admonished about the fully stipulated bench trial and did not personally agree to the stipulation. In Campbell, defense counsel agreed to the stipulation of facts concerning a material witness’s testimony. On appeal, defendant argued that his constitutional right to be confronted with his accuser was denied when his defense counsel agreed to stipulate to the testimony of the State’s primary witness. Campbell, 208 Ill. 2d at 209, 802 N.E.2d at 1208. The Supreme Court of Illinois held that defense counsel may waive a client’s sixth-amendment right of confrontation by stipulating to the admission of evidence as long as the defendant does not object to or dissent from the attorney’s decision, and where the decision to stipulate is a matter of legitimate trial tactics or prudent trial strategy. Campbell, 208 Ill. 2d at 220-21, 802 N.E.2d at 1215.

After announcing the holding, the Campbell court went on to state: “Where the stipulation includes a statement that the evidence is sufficient to convict the defendant or where the State’s entire case is to be presented by stipulation, we find that a defendant must be personally admonished about the stipulation and must personally agree to the stipulation.” Campbell, 208 Ill. 2d at 221, 802 N.E.2d at 1215. Defendant relies on this statement to support his argument that the trial court had to personally admonish him and obtain his consent to the stipulation. Earlier in the opinion, though, the court stated that the appellate court “correctly recognized in this case, when the State’s entire case is to be presented by stipulation and the defendant does not present or preserve a defense [citation], or where the stipulation includes a statement that the evidence is sufficient to convict the defendant, the stipulation implicates fundamental due[-]process concerns and can only be waived by the defendant personally.” (Emphasis added.) Campbell, 208 Ill. 2d at 218, 802 N.E.2d at 1213. In a later opinion, the Supreme Court of Illinois again noted that admonishments are not necessary if “the State’s entire case is not presented by stipulation, the defendant does present or preserve a defense, and the stipulation does not include a statement that the evidence is sufficient to convict.” (Emphasis in original.) People v. Phillips, 217 Ill. 2d 270, 288, 840 N.E.2d 1194, 1205 (2005).

As we noted in this case, defendant did present and preserve a defense. Defendant argued that the evidence was not sufficient to convict him of the felony and that the charging instrument was deficient. While the State’s entire case was presented by stipulation, defendant did not need to be admonished concerning the stipulations because he presented and preserved a defense and the stipulated trial was not tantamount to a guilty plea to felony retail theft.

E. Restitution Amount

Defendant argues that the trial court erred in imposing a restitution amount that reflected the retail value of the stolen games without crediting the value of the recovered video games against the restitution amount.

Section 5 — 5—6(b) of the Corrections Code provides that the trial court “shall allow credit for property returned in kind *** and for property ordered to be restored by the defendant; and after granting the credit, the court shall assess the actual out-of-pocket expenses, losses, damages, and injuries suffered by the victim named in the charge.” 730 ILCS 5/5 — 5—6(b) (West 2004). Wfhile defendant gave the stolen games to police, the record is devoid of any indication that the merchandise was returned to EB. Further, the record does not establish that the trial court was presented with evidence that the returned games had any value to EB or reduced EB’s actual out-of-pocket losses. Had the games been returned or of any value, defense counsel should have presented such evidence to the court. As the record does not indicate that the court failed to allow a credit, remand on the restitution issue is not appropriate.

F. County-Board Fee

Defendant argues that the circuit court clerk erred in applying a $100 county-board fee, the fee set by the county board between the filing of count I and defendant’s conviction, rather than $40, the fee set at the time count I was filed. The State responds that defendant has forfeited review of this argument by not filing a postsentencing motion. Further, the State argues that the $100 fee was appropriate because the fee is not assessed against a defendant until a court enters a judgment against him. If defendant is acquitted, defendant does not have to pay. In this case, because the fee increase occurred before count II was filed and before defendant was convicted on count II, the clerk appropriately charged defendant the fee increase that was in effect at the time of the conviction on count II. We agree with the State.

Count I was filed against defendant on September 25, 2003. On October 21, 2003, the McLean County board increased the fee for felony complaints from $40 to $100. Count II was filed against defendant on December 3, 2003. The fee increase became effective January 1, 2004. Defendant was found guilty of count II on March 24, 2004. The McLean County circuit clerk’s office originally typed $40 as the filing fee but later wrote 10 over the 4, changing the amount to $100.

Defendant assumes that the determinative date for the filing fee was the date the first count was filed. Section 27.1a(w)(l) of the Clerks of Courts Act (Clerks Act) states that “[t]he clerk shall be entitled to costs in all criminal and quasi-criminal cases from each person convicted.” 705 ILCS 105/27.la(w)(l) (West 2004). The costs, therefore, are incurred from the initial filing through the conviction and are not assessed until the defendant is convicted. The costs are not simply incurred at the initial filing and then stop. The costs cover all filings up through the conviction. Because the fee is not assessed against the defendant until the court enters judgment against that defendant, the fee required at the time of the assessment should apply as that would cover “all costs” from the “person convicted.”

G. DNA Extraction and Storage

Section 5 — 4—3 of the Corrections Code requires all felons to submit a specimen of blood, saliva, or tissue to the Illinois State Police computer databases. 730 ILCS 5/5 — 4—3(a) (West 2004). The Supreme Court of Illinois recently rejected the argument that the compulsory extraction and perpetual storing of DNA under section 5 — 4—3 violates a felon’s fourth-amendment right against unreasonable searches and seizures. People v. Garvin, 219 Ill. 2d 104, 847 N.E.2d 82 (2006). This court is bound by the Illinois Supreme Court’s decision.

III. CONCLUSION

For the reasons stated, we affirm defendant’s conviction, the restitution amount, the county board fee, and the DNA order; modify the sentence to reflect two days’ sentence credit and a $10 credit to be applied against the $4 penalty imposed; vacate the $10 DNA-processing fee and $20 surcharge; vacate the $200 counsel fee; and remand with directions to hold a hearing on the counsel fee and issue an amended judgment of sentence.

Affirmed in part and vacated in part; cause remanded with directions.

MYERSCOUGH, J., concurs.