He later moved for a new trial, arguing that the trial in absentia was held in violation of the notice requirement set forth in section 115 β 4.1(a) of the Code of Criminal Procedure of 1963 (the Code) ( 725 ILCS 5/115 β 4.1(a) (West 1992)). The circuit court of Boone County denied the motion, and the appellate court reversed and remanded for a new trial ( 344 Ill. App. 3d 296). We allowed the State's petition for leave to appeal. 177 Ill. 2d R. 315(a).
Nevertheless, our own research uncovered a case that we believe is helpful in resolving the State's imputation argument. See People v. Ramirez, 344 Ill. App. 3d 296 (2003). In Ramirez, this court considered whether the defendant's attorney's knowledge of the defendant's trial date could be imputed to the defendant when notice of the trial date was not sent to the defendant by certified mail, as required by section 115-4.1(a) of the Code of Criminal Procedure of 1963 ( 725 ILCS 5/115-4.1(a) (West 1992)).
This, however, contrary to what the parties seem to have assumed, does not end the inquiry. The record is silent on a critical point. Under this court's holding in People v. Ramirez, 344 Ill. App. 3d 296 (2003), aff'd, 214 Ill. 2d 176 (2005), and perhaps more obviously under People v. Watson, 109 Ill. App. 3d 880, 883 (1982), which this court followed in Ramirez, it is not enough for a defendant to be present at a hearing at which the trial date is set. The trial date must be announced in open court. The record here is silent regarding whether that happened.
March 24, 2004. Appeal from 344 Ill. App. 3d 296. Leave to appeal Allowed.
(Emphasis omitted.)); People v. Ramirez, 344 Ill.App.3d 296, 300, 800 N.E.2d 844, 846 (2003) ("When there is a conflict between the report of proceedings and the commonlaw record, the report of proceedings prevails.").
Because it did not, we, pursuant to Somers, vacate the public defender fee and remand the cause to the trial court for a proper hearing on the issue of defendant's ability to pay a public defender fee. We note that, in the transcription of the sentencing hearing that is contained in the report of proceedings, the court referred to the $750 fee as a public defender fee, but, in the Order contained in the common-law record, this fee is listed as a DUI fine. Given that the Order is a preprinted form, that the DUI fine appears just below the public defender fee on this preprinted form, and that what is contained in the report of proceedings controls when there is a conflict between the common-law record and the report of proceedings (see People v. Ramirez, 344 Ill. App. 3d 296, 300 (2003)), we find that the reference to a $750 DUI fine is a scrivener's error that in no way impacts our decision here. ΒΆ 27 B. Correction of Mittimus