¶1dissenting:
¶2I respectfully dissent. I would hold that defendant has failed to meet his burden of establishing that section 5 — 9—1.1(c) (730 ILCS 5/5 — 9—1.1(c) (West 2004)) is unconstitutional. Statutes are presumed constitutional, and a reviewing court has a duty to construe a challenged statute in a manner that upholds its validity and constitutionality if it can be reasonably done. People v. Malchow, 193 Ill. 2d 413, 418 (2000).
¶3The majority’s thorough analysis makes it clear that if the $5 required by section 5 — 9—1.1(c) is a “fine” as opposed to a “fee,” the section is constitutional. As recognized by the majority, “the legislature is granted substantial discretion in setting the nature and the extent of penalties for criminal conduct.” 362 Ill. App. 3d at 48, citing People v. Wilson, 144 Ill. App. 3d 290, 295 (1986) (“We are unaware of a decision of a court of review in which the fact that the proceeds from a fíne or penalty is earmarked for a particular fund serving a governmental purpose has affected the validity of the fine or penalty”).
¶4Reading section 5 — 9—1.1 as a whole demonstrates that its language is ambiguous. Section 5 — 9—1.1 is part of chapter V of the Unified Code of Corrections, which chapter is entitled “Sentencing.” 730 ILCS 5/5 — 9—1.1 (West 2004). Article 9 of this chapter is entitled “Fines.” 730 ILCS 5/5 — 9—1.1 (West 2004). Further, section 5 — 9— 1.1 imposes charges only upon those convicted of a felony drug offense. Thus, the holding in Crocker v. Finley, 99 Ill. 2d 444 (1984), is completely inapposite. Crocker struck down a filing fee required on all litigants filing dissolution petitions, finding that the fee was a burdensome litigation tax. In Arangold Corp. v. Zehnder, 204 Ill. 2d 142 (2003), cited by the majority, our supreme court pointed out that the fees at issue in Crocker were placed upon a constitutionally protected activity — filing a court case. The same certainly cannot be said of persons subject to pay $5 under section 5 — 9—1.1(c).
¶5Based on the above, I believe that section 5 — 9—1.1(c) may reasonably be construed as a constitutionally permissible fine and therefore this court has a duty to so construe it and uphold its validity. People v. Malchow, 193 Ill. 2d at 418.