*1 ILLINOIS, Plaintiff-Appellee, THE PEOPLE OF THE OF STATE COLCLASURE, Defendant-Appellant. MELVIN G.
Fourth District No. 13884 Opinion May filed 1977.
TRAPP, J., dissenting. Dotson, Mattoon, appellant.
L. Stanton Rausch, Stone, Attorney, (Tom L. Assistant State’s Paul State’s of Sullivan E. Attorney, counsel), People. for the court: opinion
Mr. delivered the PRESIDING GREEN JUSTICE in the 8,1976, pleaded guilty On G. Colclasure April defendant Melvin driving and to the offense reckless County Circuit Court of Moultrie days principle was sentenced to from be released confinement imprisonment he condition of that his continuing purpose each week for sole hours 27, 1976, was filed April petition schooling. On employment days that he several had to attend class on that defendant failed charging sought jail purpose. from the discharged why held cause he should of a rule for defendant to show entry 10,1976, hearing on a similar but May On contempt of court. *2 for held, in of court contempt to be
petition was defendant was found as forth in the probation of conditions of his set violation the jail. in He days appeals. to 14 petition, and he was sentenced erred, jury in him a denying (a) that the court argues The defendant trial, until time of (b) was not verified because the amended support finding, the (c) to hearing, the evidence was insufficient because vague and was so uncertain (d) allegedly because the order violated has not been raised deny process. Although question as him due the to question the basic of parties, are most concerned with more the we the conditions of a proper is a of whether sentence for violation to periodic imprisonment. Rev. 5—3(a) (Ill. Stat. Section of the Unified of Corrections Code 5— the nature ch. that par. 5—3(a))provides depending 1005— convicted, may which a is the court of the offensefor imprisonment, probation, to periodic imprisonment, that defendant discharge 7—1(a) (Ill. the Code or to a fine. Section of pay conditional 5— 7—1(a)) ch. states par. Stat. Rev. 1005— which the is imprisonment imprisonment “sentence of ” ° Thus, the time committed be released for of person always of is to in that incarceration is sentence similar (Ill. Rev. terms the Code By 6—3(a) the of section punishment. the 5— to 6—3(d)), sentenced Stat. ch. 1005— to spend not probation discharge may be ordered to or conditional Moreover, the in most jail in as condition of sentence. exceed months Code, are respects under the the incidents other discharge. Under each similar to those of conditional probation sentence, throughout the term of jurisdiction the court retains 7—7.) subject to (Sections 6—3(f) Each sentence sentence. and 5— 5— dealing 7—1) procedure and the for (sections conditions 5—6—3 and 5— 7—2.) Each 5—6—4 and (Sections with the is the same. violations 5— imposed. of sentence type be revoked and a more serious (Sections expressly not 7—2(c).) code does 6—4(e) 5— 5— provide of the conditions for as a sanction violations discharge. periodic imprisonment, either probation or (Ill. Criminal Rev. Prior to the effective date of the Code of Procedure 1,1963, 4 of January section pars. 1) 101—1 on to 126— ” * * * system “An providing probation (Ill. Act for a 38, par. 787) provided probation that whdn conditions of which had violated, imposed by been the court as matter discretion were only of court was the (See People sanction for violation. 436, 198 Franciere This provision was expressly retained the Code of Criminal Procedure nor later incorporated in the Unified Code of Corrections. 6—4(h) Section 5— (Ill. Code Corrections Rev. Stat. Supp., gave 6—4(h)) upon any imposed 1005— after revocation of upon probation time served conditional discharge. drafting The comments of the group for the Code Stat., 6—4, Ann. Council Commentary (Smith 1973)) Hurd stated that the effect of giving credit for time to served was diminish the effect of probation probationer after the had served a time equal of imprisonment permitted maximum sentence offense for which the individual had been sentenced to because, upon the probationer automatically revocation would receive noted, full imposed. credit for sentence that could comments however, that some sanction could be court because “the retains the sanctions fining violating of criminal offender probation.” 7—2, the conditions of The comments in regard to section 5— provide which procedures for modification and revocation *3 periodic imprisonment shall be the same as those for probation and discharge, part, brings state in periodic “This section * * * imprisonment into line with other revocable sentences under the Stat., 38, 7—2, Commentary Code.” Ann. Council 1005— (Smith-Hurd 1973).) Although section 5—6—4 has been to amended provide that the court give refuse to credit for on time served probation discharge, or conditional it 7—2(c) section still makes mandatory imprisonment that a periodic whose has been revoked full upon receive a subsequent for time Thus, served on periodic imprisonment. contempt the sanction of continues to be needed as a the sanction later of a sentence
“All courts with power punish are vested an inherent to contempt authority.” as an to essential incident the maintenance their 299, (People 670, v. (1972), 51 Ill. 2d At 671.) Javaras law, an power common the court had to treat a willful disobedience of order, such a upon appear, as that defendant to as a criminal punishable by term (Green (1958), a of incarceration. v. United 356 States U.S. 2 632.) L. Ed. 2d 78 S. Ct. An order to of sentence setting forth conditions is similar to an order In 44 appearance. (1973), App. defendant’s v. Mich. People Person availability N.W.2d the was to statutory of another sanction ruled cases have followed Illinois but no imposition the prevent rel. People in ex statement the seem to violate would that rule. To do so 465, 166 legislature that the N.E. Ill. (1929),334 Rusch v. White which is contempt as punishing courts from prohibit the force, could legislature in the were Michigan rule contempt. If the another merely by providing contempt sanction prevent the use of the if Rather, rule is that Illinois sanctioning the conduct. method criminal, by sanctioning contemptuous and otherwise is both conduct jeopardy a crime on double as prosecution subsequent bars 683.) N.E.2d Gray (1976), (People grounds. and a sentence to effect of Although the combined of the of the conditions for violation contempt sentence subsequent statutorily provided in than longer result sentence could sentenced, must be it originally the defendant offense for which not for being imposed contempt sentence is that the considered revocation, damage but for case as is the offense authority. punishment its by the breach of caused to the court of the gravity limited to the by measured imposed must be (1964). 91at Contempt 17Am 2d contemptuous conduct. See § Jur. contempt sanction history of use of the statutory Because violations, sentences similarity between law treatment of the common analogy to contempt, we by orders sanctioning of other court willful violations of a violation punish to willful empowered conclude that a trial court is in indirect holding the violator periodic imprisonment by condition contempt. criminal Since the complicated. less questions
The other in the case are in excess of hearing trial before that neither confinement judge announced of *500would 6 months incarceration nor a fine excess right jury had no severity imposed, no sentence of such S. 88 Ct. 391 U.S. 20 L. Ed. 2d (Bloom (1968), v. Illinois trial. Creek, 51 Ill. 2d 1477; Inc. County Kickapoo McLean v. at time of The verification of the by caused lack of earlier sufficient to cure defect hearing was is based theory was insufficient Defendant’s evidence verification. that he violated denying testified under oath upon the fact that he oath, has been purgation order. The doctrine of *4 294, Ill. 106 (1952), v. 412 (People in this state. Gholson abandoned that he defendant sufficientlyclear to advise 333.) N.E.2d The order was release. class his of working attending or was to be either imposed. and the sentence finding We affirm the of MILLS, J., concurs. TRAPP,
Mr. dissenting: JUSTICE I dissent from the conclusion that is an authorized means of statute, punishing a violation of a condition periodic imprisonment. By of “is a imprisonment.” sentence of It is served pursuant (Ill. 38, par. force of mittimus. Rev. Stat. ch. clearly It is 7—1.) distinguished thus period from a sentence of a of 1005 — aor sentence discharge. (Ill. of conditional Rev. Stat. 38, par. Where 6—2(a).) incarceration is probation, a condition of 1005 — the defendant is period probation. sentenced to a of
Periodic imprisonment has no function the punishment of a crimes, who has found likely been not to commit other where best interest of public defendant and the if are served not to were incarceration, receive a record of criminal supervision or where more is appropriate than a Ill. sentence. Rev. 1005—6— 1(b). discharge
Both conditional imprisonment were first provided Corrections, 1,1973. in the Unified of January Code In effective legislative discharge scheme conditional amade of the article in such Code dealing probation. with The administration enforcement discharge conditional have common statutory however, provisions. characteristics and imprisonment, Periodic was legislatively placed in a separate article of the Code with own its complete statement provisions for administration and enforcement.
A for contempt was deemed to serve an historic function where purpose was to enforce a probation, punish condition of violation of such condition without far going impose so as to a “sentence imprisonment.” There be such a function in the administration discharge. It logically possible, to find such function where a has been continues in effect. principal opinion finds acceptable hypothesis that a sentence
for contempt properly enlarge used to a sentence of imprisonment already imposed. The statute 6—2(a)), only modify authorizes the court to or revoke the 1005 — The statute does not authorize “enlarging as is the provision conditions” Ill. probation. 6—4(e). Rev. Stat. 1005 — A for a criminal offense must be made within (People v. Schmidt 2d punishment (1957), limits of fixed law. 10 Ill. split it 726.) prohibition against N.E.2d that a So held v. (People judicial power. sentencing legislative usurpation was not People Braddock Ill. 74. See (1974), App. 3d also agree Robinson One can not *5 revoking or modifying for statutory procedure the court. power inherent is an invasion initial where apparent be so opinion may not fallacy The for of an additional days. The effect sentence is for is for if the initial apparent, is more offense. that can be longest term years or the lesser of incarceration A 7—1(d).) period Stat. 1005 — is not by a sentence for enlarged Scott Michael People ex rel. mandatory parole. of law as is by operation 1108. v. Israel (1977), 66 Ill. 2d release or the terms of revocation of permits suspension or The statute inherent or powers, further modify the sentence. No the court the anomalies otherwise, imposes required. opinion are mittimus on one provided the term of sentence interrupting presumably of a second by reason of incarceration period defendant serves while Stat. (See Ill. Rev. contempt. sentence of mittimus issued under the if the cumbersome particularly becomes par. 4.) question Department a mittimus to initially upon committed See Ill. Rev. imprisonment. the term of Corrections to serve 1005—7—3. (Ill. Rev. 7—2(c) Unified Code of Corrections Section upon modification 7—2(c)) provides 1005 — upon for time served such periodic imprisonment revocation of subsequent sentence shall be credited to a other imposing
There is reason apparent no provision. than to avoid the effect of such of a sentence superimposing
I would conclude that the under the statute. is not lawful a term of