People v. Viverette
54 N.E.3d 944
Ill. App. Ct.2016Background
- Defendant Keith Viverette was charged with 12 counts of driving while license revoked or suspended (DWLR); convictions merged into Count I and treated as a fifteenth DWLR, charged as a Class 2 felony under 625 ILCS 5/6-303(d-5).
- Police stopped defendant on Sept. 28, 2011; his driving privileges were revoked, and his driving abstract showed a 1989 revocation (possession of a stolen motor vehicle) and a 1992 revocation for leaving the scene of an accident involving death or injury (625 ILCS 5/11-401).
- Defendant conceded 14 prior DWLR convictions but argued the 1992 revocation could not trigger the enhancement because his license had already been revoked in 1989 and never reinstated.
- At trial the court found defendant guilty and sentenced him as a mandatory Class X offender to six years’ imprisonment; the sentencing order and mittimus did not expressly state a term of mandatory supervised release (MSR).
- Defendant appealed, raising: (1) the 1992 revocation could not serve as the triggering revocation for 6-303(d-5); (2) the 3-year MSR was improperly imposed by the Department of Corrections; and (3) the mittimus should reflect only one conviction (other counts were merged).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether section 6-303(d-5) enhancement requires a single, first revocation (so later revocations are ineffective if license never reinstated) | State: any qualifying revocation on abstract can trigger enhancement; legislature intended multiple revocations to count | Viverette: license revoked in 1989 and never reinstated, so 1992 revocation had no legal effect and cannot trigger enhancement | Court: rejected single-revocation theory; qualifying revocations may serve as triggers; affirmed Class 2 felony conviction under 6-303(d-5) |
| Whether MSR could be imposed by DOC when sentencing order omitted MSR | State: MSR term is part of sentence by statute and attaches by operation of law | Viverette: court did not impose MSR at sentencing so DOC had no authority to add MSR after incarceration | Court: MSR term attaches by operation of law (post-amendment statutory scheme acknowledges judge must state MSR in order, but MSR nonetheless part of sentence); ordered mittimus corrected to reflect 3-year MSR |
| Whether mittimus should be corrected to show only one conviction (merged counts) | State: agree mittimus should reflect merger | Viverette: requests correction to reflect single conviction | Court: directed clerk to correct mittimus to show single conviction on Count I |
Key Cases Cited
- In re Detention of Hardin, 238 Ill. 2d 33 (Ill. 2010) (standard of review for statutory construction)
- People v. Lloyd, 2013 IL 113510 (Ill. 2013) (statutory-construction principles)
- People v. Perez, 2014 IL 115927 (Ill. 2014) (legislative intent and avoiding absurd results)
- People v. Nunez, 236 Ill. 2d 488 (Ill. 2010) (describing 6-303(d-5) as a sentencing enhancement)
- People v. Lucas, 231 Ill. 2d 169 (Ill. 2008) (section 6-303(d) substantive provision for enhanced sentencing)
- People v. McChriston, 2014 IL 115310 (Ill. 2014) (MSR attaches by operation of law even if omitted at sentencing)
- People v. Watkins, 387 Ill. App. 3d 764 (Ill. App. Ct. 2008) (MSR term applicable to Class X offenders)