*1 (No. 91381.
THE PEOPLE OF THE STATE OF ILLINOIS, Appel-
lee, v. JERRY L. LINDSEY, Appellant.
Oрinion May 2002. filed FREEMAN, J., specially concurring.
HARRISON, C.J., KILBRIDE, J., joined by dissenting. Yuhas, Defender, and Lawrence J. Deputy Daniel D. Defender, Ap- of the Office of the State Essig, Assistant Defender, of pellate Springfield, appellant. *2 General, Ryan,
James of and Attorney Springfield, E. (Joel Attorney, Frank of Danville D. Ber- Young, State’s tocchi, General, and Solicitor and William L. Browers Attorneys General, Osterberger, Domenica A. Assistant counsel), of Chicago, People. of for the delivered opinion JUSTICE FITZGERALD court:
Defendant, Jerry Lindsey, pleaded guilty L. to the (720 charge of sexual aggravated abuse ILCS 16(d) (West 1996)) on offender placed and sex 5/12 — specific probation for a four period years, intensive of days and further of sentenced to 364 work release. Under release, the terms his work defеndant was confined to County Building and Safety only Vermilion Public perform released pub- from confinement to 200 hours of lic service and counseling. work attend Under terms specific probation, his sex offender intensive defendant counseling attended Systems the Prairie Center Health (Prairie Center). began daytime He his treatment in the intensive outpatient group, scheduled to meet between 9 noon, a.m. and Monday through Friday, period 30, 1999, five weeks. On December defendant success- fully his treatment completed intensive and was ordered to attend follow-up outpatient treatment. Defendant’s outpatient Monday sessions were to meet each scheduled a.m., from Monday, 10 a.m. until 11:30 Janu- beginning ary 3, 2000. 7, January 2000, petition
On State filed a probation. petition revoke defendant’s The stated that by signing county out of the defendant violated jail counseling IV2 hours before his scheduled session on January 3, by signing county jail and out of the on 4, 2000, At January counseling when was not scheduled. hearing probation, to revoke defendant’s counselors, called four witnesses: two Prairie Center officer, and defendant. LeAnn Chezem, addiction at the Prairie an adult counselor Center, the intensive completed testified that defendant follow-up program, and was enrolled program A testified beginning January 2000. second counselor did not observe defendant at the Prairie Center that she January 10 a.m. on 2000. Defendant’s until the terms of defendant’s officer testified and described release, including and work the conditions Cоunty Public signing terms for out of Vermilion witness, called as an adverse Safety Building. When January his conduct on testified about 4, 2000. hearing, February on
Following the revocation *3 revoked, 2000, and defendant defendant’s was years’ proba four intensive resentenced to another release to be served at days tion and 364 of work The trial court Safety Building. Public County Vermilion to reconsider the sentence. denied defendant’s motion the trial judgment appellate The court affirmed (319 586), granted court (see 315). 2d R. petition appeal for leave to (1) court, that: argues appeal On to this self-incrimination, right against the State violated his 10, I, of the Illinois Constitution to article section pursuant (I him as an 1970, I, 10), by calling § Const. art. ll. (2) himself; the State testify against to adverse witness hear fundamentally fair right his to a violated the state and federal clauses of ing process under the due (U.S. XIV; Ill. Const. Const., amends. constitutions V
463 2) § him 1970, I, by calling art. as an adverse witness cross-examine, right it his to confront and because denied counsel, of its denied his and relieved the State by failing burden of the trial erred proof; For grant day-for-day presentence custody. him credit for reasons, following judgment ap- we affirm court, pellate affirming the decision of the trial court.
ANALYSIS Privilege I. The Against Self-Incrimination I, 10, constitution, Under article section our state in a person compelled give “No shall be criminal case to 1970, I, evidence himself ***.” Ill. against Const. art. § 10. Defendant first that a argues probation revocation “criminal” in proceeding meaning is nature within the I, 10, and, therefore, аrticle section the protections against self-incrimination apply hearings. Our review of this issue is de novo. (1999).
Carlson,
546,
Ill. 2d
The United States
Court
Supreme
has resolved a sim-
ilar
in the
issue
context of the fifth amendment of the
constitution,
federal
provides,
which
relevant part,
that no person
compelled
“shall be
in any criminal case
be a witness
Const.,
himself.” U.S.
amend. V.
***
The
clearly
Court
stated
“[probation
is not a
of a
stage
criminal prosecution, but does result
liberty.”
a loss of
778,
Gagnon
Scarpelli,
U.S.
656, 661-62,
Ed. 2d
L.
93 S. Ct.
1759-60
(1973).
on
Relying
Gagnon,
Murphy,
Minnesota v.
U.S.
L.
(1984),
Ed. 2d
Further, privilege the Court noted that posed to the questions put probationer where the able terminated: would be only the threat his comport with the proceeding a must “Although proceed- it is not a criminal process, of due requirements jury to a trial as there is no ing. [Citations.] Just revoked, privilege is the may be neither before proba- available to a compelled self-incrimination against ques- not the answer to that whether or tioner. It follows compelled requirement about a residential tion revocation, valid claim of there can be no threat of can be sought information ground that the on the privilege proceedings. in revocation used moreover, validly indicate, that a State Our cases incriminating questions to even insist on answers long system, as as its sensibly administer hence may not be used required answers recognizes that the it n.7, at 435 Murphy, 465 U.S. proceeding ***.” a criminal n.7, at 1146 n.7. at 425 104 S. Ct. L. Ed. 2d Murphy reasoning has followed This court privilege cannot claim that a defendant hold ques- to a his answer merely because self-incrimination of his probationary result might tion
465 Allen, For in v. 104 example, 91, status. 107 Ill. 2d People (1985), U.S. L. aff’d, 478 92 Ed. 2d 106 S. Ct. (1986), sexually dangerous 2988 we held that in a person proceeding, the defendant not to to was entitled refuse a psychiatrist’s answer questions might which incrimi nate him. In v. 2d 309, 109 Ill. 313-14 People Allegri, (1985), we probation hearing noted that a is revocation not at a which or proceeding guilt innocence is to be determined; rather, it place “only takes after the defen dant already convicted, has probation, been sentenced to and then has violated the probation.” conditions
Furthermore,
appellate
our
court
relied
has
on Mur
phy and
Gagnon
probation
hold that
revocation
proceedings
civil,
criminal,
not
in
People
nature. See
(1999)
Williams,
v.
303 Ill.
264
App.
(probation
3d
revo
cation
is
proceeding
civil);
Bell,
v.
People
296 Ill.
3d
App.
(1998)
146
(probation
proceeding
revocation
is noncrimi
nal);
(1996)
People v. Neckopulos,
which be However, 319 Ill. App. himself. 589-90. McNairy, case, appellate this court declined follow call a defendant as an concluding that adverse at a testify witness proceeding. 3d at 590. court, urges
On to follow appeal to this us McNairy hold reject appellate opinions those are civil ing proceedings Defendant that our decisions proceedings. argues (1974), Ill. People Grayson, 2d 260 Peterson, (1978), finding 2d 478 warrant *6 Peterson, Grayson are criminal. Both and proceedings however, factually from the distinguishable present Grayson, the was on placed proba situation. In defendant robbery. pleading guilty Subsequently, tion after to armed robbery armed and was he was indicted another filed charge in a bench trial. The State acquitted of that the first probation a to revoke defendant’s on petition grounds commission robbery, alleging only as estoppel In robbery. holding second that collateral acknowledged there a substantial applied, we that exists probation proceeding difference a revocation between Grayson, Ill. 2d We a criminal trial. at 264-65. and form, in yet noted that be civil proceedings not nature, in the State could and concluded in a a bring defendant before new constitutionally an issue proceeding relitigate and probation revocation in defendant in a criminal case which previously decided Grayson, charge. acquitted underlying was however, nar Grayson, holding in was 2d at 265. Our that case. It involved rowly to the facts of tailored in its estoppel application and specific issue of collateral to defen proceeding. Contrary probation a revocation revo- argument, suggest we did not dant’s in proceedings cation should be considered criminal nature.
Likewise, Peterson, held estoppel that collateral a prohibited finding the State from that the challenging involuntary at a subsequent defendant’s confession was Peterson, hearing. revocation Ill. 486. The defendant Peterson with charged possession hypodermic of a syringe. being questioned by While po officers, burglary lice defendant gas confessed a a At underlying station. the trial on the criminal charge, the trial court suppressed Peterson’s confession to the Thereafter, burglary. petition filed a revoke on underlying charge sought to testimony introduce of the confession. We held that an involuntary confession cannot be admitted against a a probation hearing. revocation Peterson, Ill. 2d holding at 484. Our was premised on due process principles, which we prohibited found use of coerced confession a probation Peterson, 74 proceeding. Ill. 2d at 485. Neither Peterson persuade nor Grayson us to from the depart well- reasoned decisions of Murphy appellate our court. Accordingly, we hold that a proceed ing proceeding. civil
Relying upon People v. McCauley, 163 2d 414 (1994), defendant next maintains that the Illinois Consti gives tution its greater degree citizens a of protection *7 and, thus, I, than the federal constitution article section 10, applies to if revocation proceedings even they are in considered civil nature.
In McCauley, clearly we that “in stated the context of deciding guarantees, Federal not authorities are precedentially controlling; they merely guide the inter pretation of State law.” Ill. 2d 436. McCauley, 163 at We that, held rather than “blindly reasoning follow Supreme costs,” United States at all this Court decision law, case rely court should on its own wisdom and reason McCau provisions. our state constitutional construe Ellwood, ley, 163 Ill. see also Rollins 439; 141 Ill. (1990) (This in 244, may, construing 2d state for process guarantеe, “guidance inspira due look and guarantee tion” of federal federal to constructions courts, final on construction of state but conclusions decide). cir guarantee are for court to Under certain this more cumstances, provisions construe our state Therefore, counterparts. than their federal broadly I, before us article section should question is whether to apply proceed be extended ings. conclude that it should not. We argues testimony that his forced at
Defendant hearing incriminated him in other probation revocation I, 10. article section proceedings criminal violation of argues exposed he that his forced admission Specifically, contempt, charge him to an additional indirect criminal which, turn, him to fines or exposed punish additional Betts, In re 26, 44 Marriage 200 Ill. 3d ment. See (1990). find indirect defendant and disagree We with type proceeding not the of criminal contempt is .I, 10, of the Illinois Con by article section contemplated stitution. enforce power
A the inherent court is vested with instituting contempt preserve dignity by its its orders Warren, (1996), People v. Ill. 2d proceedings. (1978). Baker, In re 2d The citing purpose 71 Ill. the con punish of criminal contempt proceedings court, dignity conduct offends the temnor for Warren, 173 Ill. 2d of the court. such as disobedience retrospective contempt 368. sanctions Criminal past acts which the contemnor punish nature Kaeding, App. cannot undo. (1993). refers to that subcat contempt Indirect сriminal contemptuous contempt where egory of criminal
469 Betts, conduct occurred the trial judge’s presence. outside App. 200 Ill. 3d at 47-48. a probationer “When violates probation, arguably condition of commits an act of indirect criminal contempt subject could be to both sanctions and on the contempt resentencing conviction Goleash, for which he serving probation.” People v. (2000); 311 Ill. 3d App. 957 see People Gallinger, (1989). App. 191 Ill. that,
The
although
right
State concedes
to self-
incrimination
applies
indirect
criminal contempt
(In
proceedings
Ruchala,
re Marriage
208 Ill. App. 3d
(1991)),
case,
in this
defendant did not have a realis
tic expectation that he would
exposing
be
himself to crim
inal contempt
Citing
sanctions.
Murphy,
the State as
serts
that because defendant was unaware of the
possibility that an indirect criminal contempt prosecu
follow,
tion could
he could not
privilege
assert the
against
self-incrimination at
hearing.
Again, in Murphy the Court noted that if questions posed
to a probationer are relevant
to his probationary status
and posed “no realistic
incrimination,”
threat of
then
against self-incrimination would not attach.
Murphy,
n.7,
U.S. at 435
n.7,
In Martin, the appellate court concluded that State may call a testify defendant to a probation revo cation hearing to elicit testimony which would show that the defendant had violated conditions of probation, his “but which would not him any incriminate other proceedings.” Mаrtin, 226 Ill. App. Thereafter, 3d at 759. “ the appellate court in Bell concluded that ‘other ” proceedings’ to which Martin referred did not include contempt proceedings; rather, they included other “contemporaneous or later Bell, criminal proceedings.” 296 Ill. App. Further, 3d at 150. appellate court held that because the defendant that case did not face a re-
alistic threat that his answers would be used him, there was no violation of his fifth amendment privi Bell, Baker, 150; lege. see also (a 123 Ill. 2d claiming privilege ground must have reasonable to believe that *9 questions might his answers to asked tend to incriminate him). case, the to the instant
Applying
principles
above
testimony
probation
find that defendant’s
at his
revoca-
heаring
privilege
tion
was not a violation of defendant’s
self-incrimination,
I,
under article
section 10. De-
that
expectation
fendant
did not
face a realistic
his
testimony
subject
would
him to indirect
criminal
con-
at the
tempt.
testimony
probation
Defendant’s
revoca-
only impacted
probationary
tion
his
status and
hearing
him
realistically
expose
any
proceed-
did not
to
further
such
indirect
criminal
sanctions.
ings,
contempt
as
We
decline to
from the well-reasoned
decisions enun-
depart
Martin Bell.
in
Murphy,
ciated
case,
charged
In the
defendant was never
with
instant
thus,
any
not incriminate
himself
ad
contempt;
did
Further,
petition
to revoke
proceeding.
ditional
him
he violated
only
informed
that
probation
county jail early
Jаnuary
he left the
on
probation when
3, 2000,
on Janu
county jail
and left the
without
cause
that
The
did not
inform defendant
ary
petition
2000.
contempt
indirect criminal
subject
he could or would be
to follow the court order. See
charges
failing
(1986) (notice
Waldron, 114 Ill. 2d
includes
302-04
of the
the contemner
be advised
requirement
Thus,
it
found in
possibility
might
contempt).
that he
be
threat
did not face a realistic
is clear that defendant
hearing
would
his answers
at the
any
proceeding.
him in
further
incriminate
Furthermore,
any
unaware of
cases
which
we are
revoked and been
had his
a defendant
has
subject
contempt charges
to indirect criminal
as a result
revocation. Such a result
is unheard of
stringent procedural
because of the
burdens involved
charging
рrosecuting a defendant for indirect crimi
nal
A
contempt.
person
charged
who is
with indirect
unlike a
contempt,
probationer
at a
hearing,
is entitled to constitutional protec
tions that are afforded
any
other criminal defendant.
Betts,
58; Goleash,
Accordingly, we find that testimony defendant’s at his rеvocation hearing was not a violation of right against self-incrimination, pursuant I, article section 10.
472
I. Due Process Next, upon defendant relies the due process clause to argue Illinois federal constitutions probationer not call a as an adverse witness at him hearing and force to admit a Const., V, XIV; violation. Ill. See U.S. amends. 1970, I, calling § Const. art. 2. Defendant contends that him fundamentally as an adverse witness unfair because it eliminates the State’s burden of denies proof, witnesses, him the right confront and cross-examine him apply and denies to counsel. a de novo We Dilworth, 195, People standard of review. v. 169 2d (1996). 201
Due
concerns
of fundamental
process
principles
790,
411
justice and fairness.
U.S. at
36 L. Ed.
Gagnon,
666,
1763;
Acevedo,
S.
at
v.
Peoplе
93 Ct.
see also
(“
195,
216 Ill.
3d
‘due
App.
process requires
a fair determination that the acts which formed the basis
petition
for the revocation
did occur and that fairness be
”),
during
proceedings’
quoting
accorded a defendant
(1990).
Cox,
239,
However,
People
v.
“
process
concept,
due
is a flexible
such that
‘not all situ
calling
safeguards
ations
call for the same
procedural
”
Beard,
220,
Ill. 2d
procedure.’
kind of
Brewer,
471, 481,
(1974), quoting
408 U.S.
Morrissey
(1972).
484, 494,
2593,
Thus,
33 L. Ed. 2d
92 S. Ct.
required by
process depend
what
due
procedures
“
government
‘the
nature of the
function
upon
precise
interest
that has been
private
involved as well as of the
at
Morrissey,
affected
action.’
408 U.S.
governmental
495,
2600,
481,
quoting
In the context of revocatiоn due. process outlined what is Supreme States Court has 611-12, L. Ed. 2d Romano, 606, 471 85 See Black v. U.S.
473
636, 642,
2254,
(1985);
411
Gagnon,
105 S. Ct.
2257-58
778,
656,
1756;
L. Ed. 2d
Morrissey,
U.S.
36
93 S. Ct.
408
471,
484,
33 L. Ed. 2d
92 Ct. 2593. In
doing,
U.S.
S.
so
***
the Court has
that “revocation
is not part
observed
prosecution
of a criminal
and thus the full
panoply
rights due a defendant
a proceeding
ap
such
does not
***
ply
deprives
individual,
***.
Revocation
an
not of the
liberty
entitled,
every
absolute
which
citizen is
but
only of the conditional liberty properly dependent on ob
***
servance of special
restrictions.”
408 U.S.
Morrissey,
480,
494,
at
L.
2600;
Ed. 2d at
92 S. Ct. at
see also
(“A
Bell,
proceeding has not been arbitrarily labeled a noncrimi
nal
A
proceeding.
sentence of
a
probation is
form of
agreement between a defendant and the
justice
system with severe
if the
consequenсes
agreement
is
broken”). Thus, under federal precedent a
probationer
entitled to
procedural
“minimum
safeguards required by
due process”
at a
revocation proceeding. Ro
mano,
610-11,
Illinois affords procedural safeguards by statute. 730 6—4(c) (West 2000). law, ILCS Under Illinois 5/5 — probationer is entitled to petition charging notice of the *12 violation;
the
hearing
violation;
a court
on the
the right
to be heard in person;
right
the
to confront and cross-
witnesses;
right
examine
and the
counsel
all cir
6—4(a)
(c) (West
through
cumstances.
730 ILCS 5/5 —
DeWitt,
People
2000);
(1979);
see also
78 Ill. 2d
Beard,
law,
First, citing App. 283 Ill. 3d 413 (1996), defendant calling probationer contends that a as an adverse proof witness eliminates the State’s burden of because order to prove probation violation the State must force merely probationer to admit to the viola 6—4(c) (West 2000) tion. See 730 ILCS (providing 5/5 — State has the forward going “[t]he burden with proving the evidence and the violation the preponder evidence”). Steele ance of the upon Defendant’s reliance Steele, In misplaced. probation the adult department petition probation filed a to revoke the defendant’s he failed to At the report because to his officer. hearing, the State called the However, testify. during officer to to thе de hearing, questions the trial court directed “attempted fendant and to induce defendant into admit Steele, violation.” 283 Ill. ting App. trial appeal, appellate 415. On court held satisfying the State in its burden of “assist[ed] its as the trier of proof’ responsibility “surrendered Steele, at 415. “The trial court’s App. fact.” 3d incriminating attempt provoke defendant into himself process rights App. Steele, ***.” 283 Ill. violated his due 3d at 416. case,
In the instant the trial court did not assist the responsi proof its or surrender its with burden bility e.g., See, Bell, as the trier of fact. (the question defendant;
at 152 trial court did not rather, the State called the defendant as an adverse wit questions concerning it ness asked his conduct as required probation). under the terms of his The State present calling evidence, maintained its burden to testify, including Only four witnesses to defendant. *13 questioned followingexchange defendant, State the as the between the defendant illustrates:
“Q. Attorney] [Assistant State’s And [the Miss Chezem outpatient previously you you counselor] had told only going week, would be day right? to classes one [Defendant] A. Yes. Q. Why you yourself sign yourself did let out the —or day, January
next 4? just A. I my went out to car and couple smoked a cigarettes building. and came back into the
Q. you you And knew that appointment did not have an at Prairie Center? right.” A. That’s
Only judge the trial determined whether this conduct probation. violated the terms of Therefore, defendant’s reject calling defendant’s contention that him as an proof. adverse witness relieved the State оf its burden of Additionally, although in this case probation State called four witnesses to violation, establish the principles process prevent of due do not the State from calling single probationer, witness, to establish the probationer’s testimony necessarily A violation. does not e.g., See, Bell, establish the violation. (“Depending on the actual content of defendant’s
testimony, the State have needed more evidence to violations”). prove calling Second, defendant maintains that him as an right adverse him witness denies to confront and 6—4(c) cross-examine witnesses. See ILCS 5/5 — (West 2000). calling fail to We see how defendant as an right adverse witness barred his to confront and cross- examine. The record shows that defendant’s cоunsel was given opportunity to cross-examine three witnesses by Furthermore, called the State. on redirect examina- given tion counsel, defendant’s own an opportunity explain circumstances his conduct. right Defendant’s contention that he was denied the presupposes confront and cross-examine proceedings revocation are criminal nature. As we previously proceedings held, civil. argues right
Last, defendant that he was denied the 6—4(c)(West 2000). to counsel. See 730 ILCS De- 5/5— right fendant associates to counsel with counsel’s concerning testify. put, Simply advice the decision to de- important fendant states that the most function of giving testify. counsel is the of advice whether or not to argues meaningless He that this function is rendered testify when, counsel, advice of is forced to Again, argument anas adverse witness. rests upon proceed- the contention that ings proceedings, are criminal he has the which *14 testify. not to ing, In the case of a revocation hear- right important the to counsel to render other exists example, assistance. For counsel cross-examine the present witnesses, State’s witnesses on the defendant’s expose behalf, in In or weaknesses the State’s evidence. matter, this counsel offered this assistance. Defendant was not denied the to counsel.
Accordingly, process due we find that defendant’s testify rights by compelling not him to as were violated an adverse witness for the State.
n 477 Credit Day-for-Day III. violated defеndant found that trial court
After the to resentenced defendant probation, of his the terms including 364 probation, intensive years’ four another County Vermilion release to be served of work days Welty, 275 Relying upon People Safety Building. Public entitled that he is (1995), argues 10 App. Ill. 3d custody pretrial in credit” for time served “day-for-day to 364 imprisonment periodic later term of against his —the the trial claims that Defendant of release. days work credit; if he day-for-day to award required is court end.” To off at the day one day” “gets one “serves section upon also relies claim, defendant his support Corrections, which of Unified Code 3—6—3 of imprison a term serving who is prisoner “a provides, for conduct credit day good one of ment receive shall оr imprisonment of her sentence day each of his or good day Each Section 3—3—9. recommitment under day prisoner’s pe one shall reduce conduct credit under recommitment Section or imprisonment riod (West 2000). 6—3(a)(2.1) 3—3—9.” 730 ILCS 5/3 — matter, defendant’s claim reject initial we As an reasoning under day-for-day credit he is entitled below, find that Welty. appellate in Like the the result Welty confusing, [and] language “the used the defendant grant not appear court reached did actually served that he credit days’ at 593. To sentencing.” custody prior applies credit Welty day-for-day the extent holds Defen it is overruled. imprisonment, of periodic terms statutory by examining claim is best resolved dant’s language at issue. used to describe phrase credit is a
“Day-for-day” contained conduct credit” mandatory “good system of Corrections. of the Unified Code section 3—6—3 Gooden, (West 2000); see also ILCS 5/3 —6—3 good- (noting day-for-day Ill. 2d *15 enactment); conduct credit People Cloutier, 178 Ill. 2d 141, (referring day-for-day good- to the conduct credits contained in 6—3(a)(2)); section 3— (1979) (discuss Franzen, Johnson v. 513, 77 Ill. 2d 517-18 ing history of credit system). The term “day-for- day” does not in the appear of express language section (West 2000). 3—6—3. See 730 ILCS However, 5/3 —6—3 “day-for-day” the term used describe the current system. Gooden, 223; Cloutier, credit 189 Ill. 2d Ill. 2d at 151. the day-for-day system, Under a felon earn credit for good begins behavior once he or she prison serve the For clarity, sentence. we note that system credit contained in section 3—6—3 was first replacеd system enacted 1978 and of indetermi Stat., nate sentencing. 38, See Rev. ch. Supp., 1978, 1005—8—1. par. system Prior under the of inde sentencing, terminate the Department of Corrections credits,” mandatory “statutory awarded time good credits, discretionary good-conduct commonly called added.) “compensatory good time credits.” (Emphases 8—1, Ill. Rev. Stat. par. ch. amended 1005— Pub. Act eff. February 1978. Today, credits 80— longer good-time no referred to as credits. Turning to section 3—6—3 of the Code Unified of Corrections, we that it support find does not claim that the trial court was him required day- award credit for time served in for-day pretrial custody term imprisonment. later of 730 ILCS periodic 5/3— 2000). 3(a)(2.1) (West Section 3—6—3 of the Unified 6— applies only Code of Corrections to inmates in the 6—3(a)(1) Department Corrections. See 730 ILCS 5/3 — (West 2000) (“rules regulations early for the release on to the good persons account conduct committed 1—2(e) (West 2000) ILCS Department”); 5/3 — (“ ‘Department’ Department means of Corrections of State”). Depart- this Defendant is not an inmate in the to the rather is confined Corrections, but ment of facil- county Building, Safety County Public Vermilion (730 Act Allowance Behavior Jail Good County The ity. *16 2000)) (West diminution the governs et seq. ILCS 130/1 Therefore, county facilities. prisoners of of sentence not apply. does section 3—6—3 confine- defendant’s conclude that if were to
Even we for eligibility affect his did not county facility ment to a 6—3, defen- in section contained credit good-conduct 3— receive credit because ineligible to dant still be would “A of sentence imprisonment.” “periodic confined to imprisonment of is a sentence imprisonment periodic released for may be person committed the during which periods or for day night the or during of time periods 2000). 7—1(a) (West ***.” ILCS days, or both 5/5 — is a of work release days of 364 Defendant’s sentence 7—1(d) Section imprisonment.” of “periodic sentence 5— shall be states, imprisonment of periodic sentence “[n]o of Section good provisions time credit subject 7—1(d) (West ILCS of this Code.” 730 3—6—3 5/5 — 2000). Jail Good
Further, County find that because we facili- county inmates in governs Allowance Act Behavior matter, defendant’s contention we examine ties this 2000). (West et seq. 730 ILCS provisions. under its 130/1 Behavior Allow- County 3 of the Jail Goоd Under section com- any person who Act, good behavior “[t]he ance confinement county jail in a mences a sentence of for *** person shall entitle such term imprisonment fixed added.) (Emphasis allowance ***.” good to a behavior (West 2000). Further, provides the Act 730 ILCS 130/3 apply “shall not allowance good-behavior or felony for a individuals sentenced proba- of such where a condition discharge conditional serve is that the individual discharge tion or conditional ***.” 730 ILCS periodic imprisonment a sentence of (West 2000). Clearly, defendant’s sentence of 130/3 periodic imprisonment ineligible good- him makes for behavior allowance credit. We find that the trial court by denying request day-for- did not err defendant’s for day credit.
CONCLUSION rеasons, forgoing appel- judgment For the affirming judgment late trial court is affirmed.
Affirmed. specially concurring: FREEMAN, JUSTICE join majority I in the result reached because charge State did the contempt not defendant with indirect criminal any impose not circuit court did punishment upon contempt defendant. I with do so understanding that where the State calls a defendant hearing, as an adverse witness at a support the finding answers not used to be *17 contempt. criminal of sentencing At least Illinois two courts have held contempt proper for of court is a sanction for a violation probation. People Gallinger, App. of v. 191 3d See Ill. (“The (1989) contempt power 488, 490 of the circuit proper probation”); a court is sanction for a violаtion of (1980)(“Because People App. Patrick, v. 3d 954 contempt power of the court’s inherent and because the group drafting Cor comments of the Unified Code of adopted that the of the Codewas rections indicate format recognition power a of existence of that inherent with pos sanction, one added we deem the court to have as case”); punish power contempt for in this see sessed Colclasure, also 48 991 (“Because contempt statutory history of of the of the use similarity violations, the sanction for between periodic imprisonment of and sentences sanctioning analogy to common treatment of law contempt, by willful court orders of other violations will punish empowered trial court that a conclude imprisonment periodic of a condition of ful violation Fur contempt”). criminal in indirect the violator holding commentary proba to the in the council noted ther, as 6—4, (730 Ann. ILCS statute tion revocation 5/5 — (Smith-Hurd 1997)), “the Commentary, at 95 Council and fin contempt criminal of retains the sanctions proba of the conditions violating for the offender ing crimi for may be sanctioned a defendant tion.” Because of conditions of the for a violation contempt nal defendant’s answers imperative it is probation, sup used to hearing not be at the use may contempt. Neither finding port him in a testimony against the fruits of the Corey, See McCracken contempt. proceeding (Alaska 1980) (where inherent court used its P.2d 990 testimony as parolee’s exclude the supervisory powers hearing for parolee’s the fruits of the well as trial). A subsequent purposes parolee’s to choose between required not be supplying thus answering questions, the State’s contempt, jeopardizing finding for a foundation Minne remaining silent. See liberty by his conditional Ct. L. Ed. 2d 104 S. Murphy, sota v. U.S. (1984). on may validly insist However, “a State and hence incriminating questions even answers it long as as system, administer its sensibly may not be used answers required that the recognizes the threat and thus eliminates a criminal proceeding n.7, L. Ed. at 435 465 U.S. Murphy, incrimination.” n.7, 104 Ct. at 1146 n.7. 2d at 425 S. HARRISON, dissenting: JUSTICE
CHIEF
*18
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Miller,
(2002),
Because Lindsey’s privilege against self-incrimination was violated when was compelled testify, should reverse the appellate judgment affirming court’s the or- der of the circuit Lindsey’s court which revoked proba- tion and resentenced him. The cause should be remanded to the circuit court for new probation revocation hear- ing. We should further hold that circuit court not require Lindsay to take the witness stand the new hearing prohibited it is making any from presumptions testimony by based on the absence him. (West 2000) (in See 725 ILCS a criminal case 5/115 —16 or proceeding, “neglect shall testify not [him]”). create a presumption reasons, For the I foregoing dissent. joins
JUSTICE KILBRIDE in this dissent.