*1 denying the remanded with petition seeking custody is reversed and directions. part, part.
Affirmed in reversed and remanded with directions SCOTT, BARRY JJ., concur.
THE ILLINOIS, PEOPLE OF THE Plaintiff-Appellee, STATE OF v. al.,
BURNELL ROBINSON Defendants-Appellants. et 79-771, Third District Nos. 79-501cons.
Opinion 31, 1980. filed December STOUDER, J., dissenting. Agostinelli, Office, Ottawa,
Robert Appellate of State Defender’s of appellants. Petka, Gerry R. (John Breslin and Attorney, F. X. Edward State’s Joliet Commission,
Arnold, counsel), for Attorneys Appellate both of Service State’s People. opinion Mr. PRESIDING ALLOY delivered JUSTICE court: defendants, Robinson, jointly were Mack Bell and Burnell *2 Circuit, County, Will
indicted the Circuit Court of the Twelfth Judicial battery. aggravated for one count robbery each of and one count each of 16, May 1979, On jury a on all counts. guilty found the defendants 1979, 8, Defendant August Robinson was to an extended sentenced im- years term of 12 imprisonment robbery 5-year for term of of and a concurrently. prisonment run aggravated battery, for the sentences to Defendant Bell of of imprisonment was sentenced concurrent terms years three battery. for trial years aggravated and two for The court, pursuant of 7(g) to section of the Code of Criminal Procedure 110 — (Ill. 1979, 38, 1963 de- 7(g)), Rev. Stat. ch. ordered both par. also 110 — fendants public to reimburse their their bail remaining defender from deposits. appeal. The defendants’ causes were consolidated on
Both
urge
defendants
be-
that the reimbursement order be vacated
7(g)
cause section
in People
v. Cook
declared unconstitutional
110 —
176,
(1980), 81 Ill. 2d
agrees
Defendant appeals 12-year Robinson also his extended-term sentence 15,1978, April for the robbery, contending improperly that the trial court applied 1979, 38, provision par. extended-term Rev. Stat. ch. 5—3.2(b)(1)) sentencing when him because the trial court based 1005 — the of the provision on a conviction Illinois. counters, The State court arguing the trial considered conviction, which resulted in the defendant’s from 1967 1974, to December merely expiration to toll the of the extended- limit; thus, term the court properly extended his sentence based on 1967 Illinois convictions for robbery. provision The dispute, Code section of the Unified 5— Corrections, reads:
“(b) following may the court factors be considered impose reasons to an extended term under Section sentence any 5—8—2 upon years offender who was at least old on date the crime was committed:
(1) felony, When a after convicted previously been in Illinois same or felony, years, excluding custody, within 10 and such arise out of different brought tried and charges separately are and acts; series of * * 1979, 38, 5—3.2(b)(1).) V (Ill. 1005— of four of copies At certified sentencing hearing, the State introduced as follows: prior convictions were defendant’s convictions. Those 17, April County, paroled (1) robbery, Will January 1958—armed 17, 1959; 11, April (2) County, paroled February robbery, Kane 1967—
1969; District Court for (3) April United States robbery, 1967— December, 1974; Illinois, paroled Northern District of 11,1969. (4) paroled April 12,1967 robbery, County, Will June — purpose aggra- solely The State for the introduced the extended vating application of the trigger the sentence and not to term. 5—3.2(b)(1) clearly contem- We with that section the State
plates the defendant expiration 10-year period that the ceases while in the appeal is in custody for an Illinois conviction. The issues raised on (2) expiration, instant (1) case are whether Federal tolls may whether a Federal conviction be used to extend the issues, when the considering Before first must ascertain these that, argues robbery. The present defendants were convicted of the period should com purposes sentencing, of extended-term *3 15, offense, disagree. Section 1978. We April mence from the date of the the begins upon 5—3.2(b)(1) clearly 10-year period the states that 5— Corrections, a defendant’s Unified Code of According conviction. to the finding or upon conviction is a verdict judgment occurs when a “entered” 1979, 38, A is (Ill. 1—5.) judgment of' guilty. par. Rev. Stat. ch. 1005— if guilty, is adjudication by defined as an the that the defendant court it includes the sentence adjudication guilty, the is that the is defendant 1979, 38, 1—12.) pronounced (Ill. ch. by the court. 1005— Hence, sentencing order. entry of the the date of conviction is the date of 180, N.E.2d 884. (1977), App. 47 Ill. 3d 361 People See v. Sanders bar, that the de- In at we find applying this definition to the case 8,1979, sentencing dispo- the of his August fendant was convicted on date Thus, the two entry sition and the of the order in the docket. date themselves, convictions, fall within the Illinois in do not robbery and of custody April from 10-year period because the defendant was released 1979, 8, for 11, 1969, August years more than 10 before the robbery. custody” in
Nevertheless, spent time “excluding argues the State any custody in for spent interpreted including should be all time convictions, offense, as the only custody for Illinois spent not defendant contends. State, custody”
According phrase the custody custody limit exactly means it says; what the does but, instead, for addresses offenses committed in violation of Illinois laws custody sovereign for violation general, including custody by any other of its laws. bar, State, that the defendant conceding the case at the while felony
Robinson had not or been convicted of the same within was years, the defendant Robinson contends that because 1974, 26, 1967, he April to December from committing had been out the years for less than five before present words, period, crime. In other while commenced on 8, 1979, entry nominally August conviction and defendant’s 8,1969, August by would have time the ended on should be increased Hence, using defendant custody, approximately years. 5/1 interpretation, State’s in Illinois of the the defendant was convicted same class of Al- felony (robbery) custody-free 10-year period. within a ternatively, appli- the State if its contends that even the trial court based cation of the extended-term Federal convic- sentence on the defendant’s tion, disposition such a proper because the Federal conviction was a previous Illinois conviction.
This apparently parties issue is first can impression, one of for the point to no authority interpreting operation 10-year period found in section 5—3.2(b)(1). provision, The former extended-term 5— 1,1978, which was repealed by had present February section effective limitation, no custody-free Stat. or otherwise. Rev. 38, par. Further, 8—2.) contemporaneous legislative find no comments that permit place legislative us to within its context. section argues penal is a that because section 5— it must strictly only be Illinois State con- construed to include People v. Perkins supreme (1946), victions. Our 395 Ill. court in 558-59, 622, 625, 70 N.E.2d declared: inflicted authorizing punishment statute more severe
“[a] upon highly subsequent one convicted of a offense second penal in its strictly and should and not extended construed construction, not, to cases which do the strictest provisions.” come under its
We wary should be stat- placing substantial reliance on canon of *4 utory for, interpretation said, many were de- Llewellyn Karl canons veloped only statutory meaning on the incorrect could premise that one exist; hence, every point. there are almost opposing canons on (Llewellyn, Remarks on Theory Appellate Decision and the Rules or Canons Construed, About How Statutes Are L. Vand. Rev. 395 (1950).)However, the stating penal canon that strictly statutes should be against construed reasonable, is justified independent poli- cies, including: (1) that the lawmaking body duty owes to its citizens making unmistakably clear those acts for which liberty may life or be forfeited; (2) strict construction is a useful protecting means of the indi- against vidual arbitrary officials; by public (3) actions and since the State laws, makes the the laws are adversely construed State. 3 A. Sutherland, Statutes and Statutory (4th 1974). Construction ed. §59.03
In light of legislature’s 1977amendments to limit provision, we that 5—3.2(b)(2) section 5— should be strictly In reconciling part construed. of the statute with the whole give we consideration to the circumstance that the time in custody” refers may to and be the preceding limited “after been previously Illinois of the same or felony.” Custody may interpreted to mean a conviction in Illinois. While apply Act, we reject strict construction to the we cannot its precise terms. Notably, phrase “previously convicted Illinois”is not necessarily courts, limited to a arising solely in the Illinois State but could reasonably be construed to cover a conviction in Illinois in a Federal court for a case, offense. this “previously the words convicted in Illinois” clearly describe Robinson’s conviction. words “excluding the in custody” clearly “custody” refers to the served by case, Robinson in the operates therefore to extend the 10-yearperiod involved.
There is nothing in the Act disclosing an to intention exclude Federal convictions in A Illinois. strict require construction does adopt a construction contrary specific terminology. to It may also be noted that the Act provides Illinois, for extended terms for crimes committed in an objective supported by giving equal consideration similar crimes committed in determination, Illinois.Under such the trial court did not err in extending defendant Robinson’s reasons,
For the foregoing judgments we affirm the Circuit Court of Will County in respects all other than the order of the court which directed that each public reimburse the defender.
Affirmed.
SCOTT, J., concurs. STOUDER, Mr. dissenting: JUSTICE I must respectfully majority opinion. dissent from the I believe that under section of the Unified Code of Corrections *5 Robinson 5—3.2(b)(1)), defendant 1005 — This section to a improperly sentenced reads: by the court may be considered following factors
“(b) Section under sentence term impose an extended reasons to on the years old least 17 was at who upon any 5—8—2 offender the crime was committed: date having felony, after is
(1) When a defendant convicted class greater same or in convicted Illinois previously been such custody, and in spent time years, excluding felony, within different arise out of brought and tried charges separately are * ” acts; series of I strictly construed. must be I the statute agree majority with the that previously having been phrase “after majority also with the that the subse- felony” limits the class greater in of the same or convicted Illinois from the custody.” I differ spent in quent phrase “excluding time however, phrases. accorded the majority, in the construction to be in previously been I believe the “after spent qualifies greater felony” Illinois of the same or a custody must be for First, in in in custody” ways. spent the time the defendant felony with which felony greater of the same or class as the for a mis- words, custody in presently charged. spent is In other and therefore felony demeanor at a fall within the statute lesser would not would not toll the statute.
Second, in Illinois” must have been “convicted defendant also majority spent custody the time in excluded. contrast to be jurisdiction, opinion, I in Illinois” refer to believe the words “convicted for a geography. legislature not Had intended time it period, calculating Federal conviction to be excluded intend is legislature did not so explicitly could have so stated. That the excluded, it must above, As evident. stated for time the defendant felony be for with which felony greater the same or as the method However, no presently legislature presented has charged. is the felony conviction by which it can a Federal be determined whether permit legislature same intended charge. as the State Had pro- have it would jurisdictions convictions in other to toll Therefore, “convicted words vided such a I believe the method. law, i.e., and do jurisdiction, Illinois” refer to convictions under statutes, they if occur even contemplate convictions under Federal Illinois. majority opinion portion
For I these reasons dissent from affirming defendant Robinson’s sentence.