*1 upholding decision recapture Board’s calculation of to be recovered in for Hawthorne.
Affirmed. O’MALLEY, JJ.,
FITZGERALD-SMITH and concur. ILLINOIS, THE OF PEOPLE THE STATE OF Plaintiff-Appellee, v. TRAVIS WHITFIELD, Defendant-Appellant. (6th Division)
First District No. 1 - 05-0751 Opinion filed June *2 J., O’MALLEY, dissenting. Krieger, Appellate
Michael J. Pelletier and Jonathan both of State Office, Chicago, appellant. Defender’s (James Devine, Fitzgerald, Attorney, Chicago E.
Richard A. State’s Nowak, Linehan, Attorneys, of John E. and Katherine Assistant State’s counsel), People. for the opinion SMITH delivered the
JUSTICE FITZGERALD court: trial, a bench
Following guilty the vacation of his (defendant) possession Travis Whitfield convicted X a stolen vehicle and sentenced as a Class offender motor years prison. appeals, contending He the trial court erred he considering, imposed, as sentence it time credit probation, mandatory served under and whether his Sheriff’s Work (SWAP) as He also Program Alternative creditable well. must reflect an additional contends that mittimus be corrected to one-day time served and to reflect the proper crime for which he was convicted. He asks that we correct the requested mittimus as and that we then remand the cause for crediting determination with respect to his and SWAP reasons, time. For following remand order certain correc- tions to the mittimus.
BACKGROUND 9, On May 2001, charged defendant was arrested and with two aggravated possession vehicle, counts of of a stolen motor with the seeking second count an extended-term sentence due to the victim’s age. custody Defendant was May 14, released from on bond on September On plea agreement he entered into a with the this, State. pled guilty aggravated Pursuant one pos- count of session of a stolen years’ probation, motor vehicle and received two with the completion days of 30 of SWAP the end year. first thereafter,
Soon the State filed a motion to the illegal vacate sentence, having then discovered that defendant had prior convictions possession of a stolen motor vehicle residential Ac- burglary. cordingly, argued the State that defendant should been have sentenced offender, aas Class X which would made ineligible have him for the plea agreement. he received under the In May *3 defendant guilty moved to vacate his and for a new trial. The granted 2003, trial court defendant’s motion in June and the cause bench proceeded to a trial. trial, possession
At the State both simple reduced counts to of vehicle, victim, 2 felony. stolen motor Class Emmerline Clark- son, gray testified that her missing Lexus automobile went after completed apartment. defendant had electrical at her work Officer driving James Fiedler testified while he patrol, that on saw defendant car, stolen; reported Clarkson’s which had been Officer Fiedler further over, pulled testified that he defendant when defendant confessed that copied keys he had and Clarkson’s had taken the car without her knowledge.
Following the close testimony, of the trial court found defendant and, convictions, to guilty prior due his him as a Class X sentenced of- years prison. fender to The issued mittimus stated that convicted of statute ILCS violating was “625 5/4— 103.2(A)(7)(A),” felony. 1” days” “Class It also credited him “0005 actually custody.” “time served in
ANALYSIS presents review, Defendant three main contentions for all erred First, asserts that the trial court he dealing with his sentence. under for time he served giving him credit to consider failed and negotiated guilty plea, his of to the vacation prior and “custodial” were days of SWAP his whether Second, he sentence as well. eight-year to his therefore creditable credit for corrected to reflect the mittimus must be claims that Third, insists he prior sentencing. to actually of he served amount proper to reflect the be corrected that the mittimus must further rank that of- class of proper he was convicted and the crime which fense. second and third conten by addressing defendant’s begin
We As a appeal. on tions, the State has brief which conceded Court matter, therefore, Supreme pursuant we note that threshold (134 615), appeal may 2d correct reviewing R. Rule 615 time, remanding to the trial any the cause the mittimus at without (1999); v. Davis, 684, People See court. 912, Latona, Mitchell, (1992); People v. see also (1998) (amendment place Ill. 2d mittimus take time). served prior of credit for time Regarding amount day custody any part sentencing, “[a] defendant held that includes given day”; be his sentence for should Smith, 258 Ill. day custody. People taken into was that into points Defendant out he was taken here 9, 2001, May custody by May arrest on released on bond on asserts, so, days to six rightly 2001. He that this amounts agrees, conceding credit. dates and to the conclu The State these mittimus, “0005 sion which states defendant is entitled to actually custody,” be days” credit “for time should agree changed days. dispute, parties As there no with the six days, order to six portion the correction of this mittimus one-day thereby giving defendant an additional credit toward sentencing. the time ultimate sentence for he served R. Ill. 2d mit-
Likewise, regarding the crime and rank listed on the class timus, out, so, trial, the points prior to again rightly charges against him and notified the trial court State reduced mo- proceeding only possession of a stolen charges simple ag- crime in its original charges tor vehicle rather than the *4 mittimus’ state- gravated Accordingly, form. defendant asserts 103.2(A)(7)(A),” a ment that he was convicted of “625 ILCS 5/4 — agrees 1” felony, Again, “Class is incorrect. the State with defendant. aggravated of of- Section 4—103.2 the Illinois Vehicle Code describes a relating vehicles, aggravated possession fenses to of including motor 452 vehicle, assigns
stolen motor and felony them Class 1 See status. 625 (West 2000). Meanwhile, ILCS simple of possession a stolen 5/4—103.2 motor is vehicle vehicles,” found entitled relating “Offenses to motor 2 assigned a Class felony status. See 625 ILCS (West 2000). appeal As the State concedes in brief 5/4—103 it proceeded only defendant of violations the Class of simple fense possession again of under section we exercise our powers amendment and order the of correction to reflect mittimus crime, this lesser rather than violation a Class under felony sec 615; Latona, tion 4—103.2. R. Ill. 2d Ill. 2d at 278. disposal issues, With the of these what remains for our review is defendant’s contention that the trial court erred when it failed to giving consider him probation prior credit for time he served under to negotiated guilty plea, vacation of his mandatory whether his days SWAP were “custodial” and therefore creditable to his eight-year sentence as well.
Defendant presenting argument regarding an two types different Dealing time served: and SWAP first with his claim sur rounding mandatory days defendant asserts that we SWAR must remand his cause for a determination of whether of his part and, thus, sentence is considered “custodial” under the law whether may be credited his ultimate principally to sentence. He relies on the Baltzer, (2002), case of where review ing court held that good-behavior defendant was entitled sentence, finding mandatory credit after that his which included SWAR “periodic” not, any point, was not be considered since was Baltzer, Essentially, “released.” 3d at 229-30. the Baltzer the time the concluded that defendant had served in SWAP was particular Baltzer, custodial under the circumstances of that case. See 3d at 230. reasoning applies Whether the Baltzer instant case as contends, distinguishable defendant or whether it is State insists, beyond scope find be irrelevant of our review. While credits and SWAP conditions raise an interest issue, ing it is one here. record not we must decide does show any days reported of his before SWAP is, deal which made them was nullified. That provides actually single day us with no evidence that he even a academic; of SWAR This makes the issue without evidence that he time, served his SWAP there no reason for us consider whether and, thus, can be considered creditable served SWAP time “custodial” sentence, against his nor remand to is there reason us order same have the trial court for to determine the issue. This would *5 below) (and court remand to the possible ripe for our review become he But since plea. of the portion time under this defendant served had See, argument. e.g., not, decline to address the merits did (where (1990) trial court Mims, App. 95-96 People of use misdemeanor ruling to whether State could reserved trial, upon his against fenses the defendant cross-examination regarding held testify, this was he did not even issue raised where review). ripe academic and not merely be different, however, The when we deal with issue is negoti- the probation. September pursuant to sentence of On years. In probation for two guilty plea, placed ated defendant was eligible for 2003, after the State defendant was not June discovered the X after it moved due his Class offender status and probation granted sentence, trial “illegal” court to vacate Accordingly, to trial. proceed defendant’s motion to vacate his probation his sentence before it was eight defendant served months of nullified. failed to consider whether
Defendant asserts that trial court given for this time served as his he should have been novo eight years sentence of He claims a de prison. ultimate any not appropriate standard of since the court did use review at all. alleges simply discretion—he did not consider the issue While provision his acknowledging governing that there is no scenario, points to Unified Code of Cor- defendant two sections (Code). 8—7(b), arguing He relies first on rections section 5— custody and the trial apply court must credit for all time court’s failure to consider his months on violated (West 8—7(b) 2004). Then, section. See ILCS he notes 5/5— directs trial court exercise discretion resentencing ordered on defendant who has violated (or “credit”) crime, i.e., apply same to decide whether to 6—4(h) (West time 2004). to the See 730 new sentence. ILCS 5/5 — own analogizes revocation-of-probation He scenario his situation, trial arguing that he deserves the court’s consideration defendants because sentencing credit even more so than resentenced change sought he did his was the State that not violate —it upon his sentence its own mistake. has part, argues For its that defendant waived appeal the State raising he this issue for review because did not file written motion plain and that the error doctrine following imposition, the sentence’s closely not does save review the evidence was balanced not because argues right and a substantial is not involved. State then reviewed, if the correct even the merits of defendant’s contention are discretion, standard of review abuse of the cause should not be remanded because the trial court him a properly sentenced as Class X offender, and section Code inapplicable since defendant did not his violate waiver, Regarding the State’s claim of we note that defendant he did object admits to the him give trial court’s failure to sort of credit sentencing following trial, did nor postsentencing See, raise the issue in a People Reed, motion. e.g., (1997) (a must file postsentencing written review). to preserve sentencing appellate motion so, issues for Even however, completely agree we cannot with the State that he has entirely waived the instant issue for our review. is because consider, is asserting that the trial court failed to in its *6 discretion, he agreement time served under negotiated plea the as a credit. A sentence in a statutory guideline, conflict with such provision sentencing credit, on may challenged is void and be at any (2004) (the Roberson, 430, time. v. 212 2d People See Ill. 440 defendant did regarding through not waive sentencing issue credit his failure to earlier); Whitmore, People 117, raise it see also 313 App. v. Ill. 3d (2000) (because sentencing mandatory, credit for time served is claim waived, of error cannot if calculation of credit be even the award). agrees with the trial court’s erroneous Moreover, defendant’s claim of error on the calculation focuses against pursuant credit he have been able to receive his sentence 6—4(h) 8—7(b). to statutes the and two Code: section section 5— 5— 6—4(h)’s below, As we out point language discretionary, section is 5— 8—7(b) mandatory whereas section establishes a credit time 5— 6—4(h) (West 2004) Compare served. 730 ILCS with 730 ILCS 5/5— 8—7(b) (West 2004). 6—4(h) Review a section claim es 5/5 — 5— to sentially asks us conclude that the trial court its abused discretion by failing grant defendant, sentencing admittedly, relief this never requested. People Bacon, 795, v. Therefore, object postsentenc defendant’s failure to or file a written Bacon, ing likely motion would issue for forfeit the review. See 6—4(h) (sentencing involving App. 3d 796-97 issue raised 5— appeal brought for first time on and never before trial court when the waived). However, is review of a section defendant was sentenced 8—7(b) statutory claim involves determination defendant’s 5— served; thus, right post- credit to file a failure written sentencing not, contends, motion does as the State forfeit the issue for (1998) People Dieu, review. See (distinguishing requirement statutory for written motion because 8—7; right time served is under section 5— of this therefore, trial court’s determination regarding a claim filed); is not see waived, postsentencing even if motion right cannot be (1997) (a defendant’s Woodard, Ill. 2d also under section 5—8—7 statutory right credit for time served receive apply). not Because defendant’s mandatory and forfeiture rules do sections, statutory these here cites both of appeal contention See, e.g., v. Industrial underlying choose to merits.1 Daniels review (2002) (McMorrow, J., specially concur Comm’n, 201 J.) Freeman, it does not ring, joined (relaxing waiver rule since limit appellate jurisdiction). entirely
First, it State has missed apparent us cause; primary mark does address the issue here not majority appellate instead devotes the of its brief to defendant’s SWAP argu- rests the bulk of Regarding probation, contention. the State properly ment remand on its belief that the trial court Yet, eight-year X offender. sentenced defendant as Class been in has prison dispute; has never challenge portion not denied is a Class X offender and does not Thus, essentially provided response of his sentence. the State has no regarding sentencing credit to defendant’s contention other inapplicable than insist that section of the Code is since 5— However, much more defendant did not violate his there is here, presented argument to the and without a viable from situation State, we are left on our own to examine interaction between 8—7(b) to defen- applicability sections and their unique placed position in a precarious dant’s as, situation. We have been research, thorough no statute or after we have found directly case now point law with what we are faced.
Despite similarity of the two sections and *7 8—7(b) them, many ease with which confuse section and section 5— 6—4(h) very stating are different. Defendant is in correct 5— 8—7(b) Code, required apply under court is section trial 5— time prison spent custody. all in That section credit to sentence for states: given
“The credit on the determinate sentence offender shall be imprisonment for period or maximum term and minimum custody in spent time as a result of the offense for which 8—7(b)(West2004). ILCS imposed sentence was ***.” 730 5/5— language that defendants Generally, the of the section mandates served; this meant to ensure that receive credit for time section was 1Accordingly, plain error or we need not address defendant’s assertions review, ef counsel nor the State’s ineffective assistance of as means save forts to counter these assertions.
456 subjected
defendant is never
to more total
in
time
confinement for a
particular offense than he could
have received
in
offense
Dieu,
249;
first instance. See
Ill. App.
also
see
v.
Scheib,
76 Ill. 2d
Specifically,however,
250-51
this section
added.)
applies
spent
custody.”
to “time
in
(Emphasis
730 ILCS 5/5—
7(b) (West 2004).
is,
applies
That
when the time for which credit
8—
sought
is
in
was served
See People Gaurige,
confinement.
168 Ill.
(1988);
App.
Scheib,
3d
see also
Unfortunately, situation here does not fit the 8—7(b). parameters of section spend Defendant did not time “in 5— custody,” i.e., confinement, required for that be ap section to Rather, plicable. probation, was on and this be equated cannot confinement; supreme court has declared it to be a lesser form of distinguishable restraint explicitly from confinement as stated sec 8—7(b). (1989) People Bogan, tion See 185 App. Ill. 3d 5— *** *** (“constraints liberty imposed under cannot be equated imprisonment”); Scheib, to the constraints of see also 8—7(b) 251 (only applies at “actual confinement” under section 5— only can a defendant receive credit under this section for time (this “spent jail”); Dieu, accord section “jail offense); concerns Gaurige, service time” an (time 3d at 872 served on addressed section 5—8— 7(b)). then, For all intents and if purposes, seems as section 5—8— 7(b) brings us no closer to a conclusion here. 8—7(b), Section like section also deals 5— 5— 8—7(b) However, credit. while section addresses time confinement, custody or deals with lesser
restraints, discharge, namely, supervision, conditional (“section Scheib, 251; Gaurige, 76 Ill. 2d at *** sought for which credit is applies 5— served discharge supervision” conditional probation,
unconfined
457 8—7(b) to time applies original), section (emphasis in whereas 5— confinement). in served regarding section story Yet, the end of the not 5— ap- and its our trial courts by to its use especially when it comes regard as sec- in this simple not as the instant case. It is plicability to sentencing. toward 8—7(b), mandatory credit espouses tion which 5— 6—4(h) history. an intricate contrast, In has section 5— violation, modification involves Code Section 5— Un supervision. or discharge conditional probation, or revocation 5—6— 8—7(b), section situation to which the classic like section 5— 4(h) probation for crime applies is when a defendant receives it, it, the court revokes probation, violates begins serve but then See, original e.g., for the crime. prison and resentences him time enacted, ordered Scheib, initially 2d this section 76 Ill. at 251-54. When jail the later served on credit for time (1988); Farmer, App. 436, 440 see v. 176 Ill. 3d People sentence. See 706, (1977); People Ill. 3d 707 accord v. People Wilford, App. also v. 54 (1975). 1974, 180, Kaminski, In the section was App. 30 Ill. 3d 185 discretionary for time amended to make credit 707; Ka Wilford, App. 54 Ill. see also with our trial courts. See minski, time, read: Ill. 3d at 185-86. At that the section App. 30 “ discharge supervision or probation, ‘Time served on conditional imprisonment against a
shall be credited the court ” *** Farmer, App. 176 Ill. 3d unless the court orders otherwise.’ 6—4(h). 439, 1985, 38, par. Ill. ch. quoting at Rev. Stat. 1005— gave probationary credit for ability our courts the consider served; contemplated get credit for his that a defendant would the trial probation against a later sentence for the same unless crime (if Farmer, Ill. 3d 441 court did deny App. court chose to it. See 176 at silent, expressly the defendant was deny simply credit or remained 6—4(h)); see also Gau this version of section entitled to under 5— (under section, trial rige, App. 168 Ill. 3d at 872 version where did unconfined on court not comment on time the defendant served rather, issue, but, the defendant was remained silent it); see, expressly deny did not entitled to a credit because the court Moaton, 161, e.g., 3d App. amended —not however,
In but, rather, discretionary the manner in which fact that it was Farmer, Ill. trial court’s discretion to be exercised. See (Public 439-40; ef 3d Act Gaurige, at 6—4(h)); People January 1, 1988, Tho fective amended section 5— (1990); mas, Bogan, see also (trial choosing grant or refuse has broad discretion credit for time on probation). section, served That version of the which is the current one found in our today, Code states:
“Time on probation, discharge supervision conditional *9 by shall not be against credited the court of imprison- a sentence *** added.) ment unless the court (Emphasis orders otherwise.” (West 6-4(h) 2004). 730 ILCS 5/5 — Farmer, Now, See also Ill. App. 176 3d at 439. contemplates section usually that a defendant will be denied in probation credit relation to served; he will if only receive it the trial court specifically decides to (if grant Farmer, it. See 176 Ill. 3d 441 App. at trial court does not expressly grant probation if credit for it remains silent in this regard, the defendant is not to entitled credit under current form of (section 6—4(h)); Thomas, accord Ill. 3d 528 App. 193 at 5— provides probation given now that credit not be will unless orders). trial court so change interesting in section provides an 5—
observation. Prior to
when faced
trial
situation where a
during
court
sentencing
probation
did
comment
on
time a
prior
defendant served
upon
proba
revocation of that
tion, our
held
reviewing courts
that he
entitled
under this
(these
Farmer,
section.
Ill.
441
App.
See
176
3d at
cases concluded
if
deny
time,
probation
say
court wanted to
credit for
it should
so;
interpretation,
if it left it to inference or
silence was to be
interpreted
see,
apply);
Gaurige,
mean credit would
Ill.
e.g.,
168
review);
3d
App.
(applying
reasoning
grant
at 872
on
credit
(because
Thomas,
App.
Ill.
3d at
trial court did not order
denial of
on probation,
credit for time served
the defendant was
(same).
it); Moaton,
App.
Currently,
entitled to
182 Ill.
3d
however,
reviewing
along
courts have made clear that
with the
change
statutory language
trial
change
has come a
the use of
court
denying
[for
discretion: “a court can exercise discretion in
credit
on
probation]
time
specifically stating
without
that credit is
Farmer,
because,
denied.”
App.
176 Ill.
3d at 441. This is
under
version of section
“if
grant
[trial]
new
court decides to
Farmer,
probation,time,
say
credit for
Ill.
App.
it should
so.”
effectively
point,
highlight People
To
illustrate this
Kauff
man,
case,
argued
App.
172 Ill.
In that
the defendant
3d 1040
appeal
given
period of
two-year
on
that he must be
for time he
same crime
incarceration
served
He
trial
to the revocation of his
asserted that because the
period
resentencing hearing,
did
at his
court
not discuss
6—4(h). Upon
review of the
was entitled to credit under section 5—
had
agreed the trial court below
record, the
court
Kauffman
proba
had
served
regarding
time defendant
made no remarks
prior to 1988
been sentenced
that had defendant
tion. The court noted
find for
statute,
required
it would be
the old version of the
under
However,
Ill.
3d at 1043.
Kauffman,
App.
him on his claim. See
changed.
had
See
that section
the court concluded
Kauff
that,
the new
it held
under
man,
Accordingly,
at 1043.
defendant’s
[a]
to comment about
trial court’s failure
language, “[t]he
time.”
credit for that
not receive
[the]
means
defendant will
af
court therefore
Kauffman,
3d at 1043. The
Kauffman
court.
as handed down
the trial
the defendant’s sentence
firmed
Farmer,
1043;
see also
Kauffman,
(with
credited
amendment,
a defendant must be
though
at 441
even
5—6—
incarcerated,
not entitled under section
for time
4(h)
he is
if
resentencing
upon
credit for
revocation
issue).
the trial court remains silent on the
case,
Reviewing
particularly
the record
the instant
hearing following
trial, we
transcript
resentencing
conclude,
Kauffman,
that the trial court did not
much like
*10
eight
probation
on the
defendant
comment
months of
only
imprisoned.
same crime for which he was later
The trial court
discussing
in a
how defendant’s
procedural
mentioned it
sense when
docket;
acknowledged
probationary
case ended
on its
it
that “a
up
It
imposed,
sentence was
but that sentence was vacated.”
never stated
probation
record
much
or that it
how
time defendant served
prison
specifically
fashioning
would
consider that time in
the new
outlined,
appear
have
it would
Following
just
sentence.
the rules we
that,
6—4(h),
the court’s
pursuant
to the current form section 5—
it
regarding
probationary time served means
chose
silence
defendant’s
time; had the
jail
to
its discretion not
credit his
sentence with
credit,
so.
to
him
have said
court wanted
afford
this
would
441;
Farmer,
Kauffman,
3d at 1043.
However,
history, amendment
and
while we have made the
6—4(h) clear,
obligated
point
we are
to
interpretation
section 5—
it,
8—7(b),
bring us
a certain
really
out that
like section
does not
5—
glance,
seemingly
At
fits the
answer here.
first
defendant’s situation
probation, he
applies:
classic scenario to which this section
he was on
proba-
jail time,
did not mention his
resentenced to
the trial court
hearing and, thus,
the cur-
sentencing
tion time served at the
under
is
interpreted
rent
to mean he
interpretation,
silence should be
problem
eight
months on
entitled to credit
his
Technically,
faulty premise.
with this
is
it is
conclusion that
based on
he
apply
does not
to defendant’s situation because
section 5—
probation,
never violated his
nor was it modified
revoked.
According
us,
serving
the record before
defendant was
his two-
year probation
any problems
sentence without
for eight months the State realized it had
in offering
made mistake
probation via
plea agreement
State,
due to his Class X offender
It
status. was
then,
probation
that moved the trial court to vacate the
sentence as
“illegal.”
filed,
Once that motion was
and upon
urging
the trial
court,
plea
defendant asked to withdraw
guilty
proceed
his
Therefore,
trial.
probation
violated,
officially
was never
modified;
revoked or
was vacated and his
Ac
was withdrawn.
cordingly,
6—4(h),
deals
only
which
credit
5—
when a
been
by
sentence has
violated
the offender or
court,
See,
revoked or modified
the trial
is inapplicable
e.g.,
here.
(West
2004); Scheib,
730 ILCS
at
251-54.
5/5—
us
leaves
without
clear answer
the issue
presents.
completely certain,
We are not
transcript
from the
of the col-
loquy
resentencing hearing,
at
whether
trial court exercised
crediting,
form,
discretion
considered
in some
months
eight-year
to his
prison sentence
remaining
issue),
(purposefully
silent on the
or whether the trial court
(ac-
employ
failed
any
considering
discretion in
all
time).
cidentally failing to remember he had served this
are
What we
certain
unique
any
that defendant’s
does not
situation
fit
statu-
tory
that,
or case law we
find. Ultimately,
can
the truth is
under sec-
8—7(b),
tion
if
jail
defendant had served
time in
before his
and was
eight years
trial
then sentenced to
he
in a
prison, would be
position
better
than he
now because the trial court would have been
Likewise,
required
give
him
for time
credit
served.
under section
if
defendant had violated his
caused the
it,
likely
position
trial court to revoke
most
would
be
a better
than he is
to clearly interpret
now because
would be able
the trial
court’s
later
hearing
remarks
to determine whether
apply.
would
however,
view,
stands,
As it
In
defendant is in limbo.
it is not
placed
prison
fair that one
before trial receives
who
*11
(section
8—7(b))
for his later sentence while defendant here
nothing
did
provisions
but follow the
of his
and receives
(perhaps) no consideration. Nor is it fair that defendant here be
way
placed
proba-
treated the same
as one who was trusted to be
say
it.
tion but then violated
This is not to
that we believe defendant
grant
must
a
is a model citizen or that the trial court below
him credit.
Simply
particular
in
in
put,
light
we are hesitant
this
situation
hearing.
colloquy
sentencing
trial court’s brief
We do make
at
asks,
allow,
all
all
will
is that the trial
clear that
and
we
since the
and
it is so
closely
peculiar
since
his situation
court examine
court, not
the trial
and
here were
State
parties
mistaken
defendant,
have
statute we
fit into either
does not
who
discussed.
Arna,
People
legal principles set forth
are mindful of the
We
Wade,
App. 3d
(1995),
137 Ill.
facts of
2d 107
and the
(1987). Indeed,
a
Arna declares
(1985), affd,
This is inherently, not to fundamentally, mention Ulti unfair. mately, are encroaching upon rights. due process While Arna and good law, they fix, Wade are address, and, do not or problem even this thus, we do not find them be binding particular in the at hand. case binding, however, do find duty uphold What we is our to heed and principles basic of and common sense fundamental fairness in our See, legal system. Garlick, e.g., People placed One who is a probationary by on sentence the State a trial completely court and complies should not be treated differently than placed it, one who there and violates simply because the former’s sentence was later void declared rather than revoked. If anything, he be actually being should treated better instead of prey made to fall game dangerous labels semantics. The fact that defendant community here was within the ranks our experiencing any without further criminal or social problems and met all the conditions of his clearly mitigation over months is purest in its We, parties cause, form. and all the to this realize that defendant is a Class X whose day imprisonment offender first well-deserved delayed by eight clearly though we note that this was months — through no conniving not, his own. Erroneous or change by does not the fact that defendant abided the sentence he was respects, in all nor change reality issued does it that this time of perhaps simply solely restraint not have been considered way presents because of the our statutes are written. This a real problem. peculiarities case, Due of the instant defendant’s time should, least, very at the trial bé considered Then, below in the name of fundamental fairness. the final decision of change prison whether to defendant’s eight-year accordingly entirely province will be within the of that court within its discretion.
Therefore, correcting in addition to the mittimus as we stated earlier, Again, we remand this cause to trial court. we are credit, if at all. amount of certain ordering it to afford to his in relation study situation only request We grant discretion, chooses clear, using whether claim and make prison to his in relation time served deny for the or consistently noted reviewing have all, courts sentence. After grant specifically policy” for trial courts the “better it would be Farmer, deny credit for not ask this 1043. We would 441; Kauffman, 172 *13 mold either section remotely fit the if defendant even the trial court 6—4(h). 8—7(b) not, and since the does But since he or section 5— 5— mistake that occurred (which did squarely on the State in this case fell required as it background investigate defendant’s adequately the most remand is offering plea we believe agreement), before a do that defendant alternative, light in of the fact especially appropriate clarity seeking Ultimately, we are nothing probation. violate his did is in this cause issue, and conclude that remand peculiar option goal. to meet best
CONCLUSION reasons, judg- we remand Accordingly, foregoing for all the as court, mittimus directions to correct the ment of the trial with stated herein.
Remand; mittimus corrected.
McNULTY,P.J., concurs. O’MALLEY,dissenting:
JUSTICE Contrary to what majority opinion. from the respectfully I dissent which concludes, authority in Illinois controlling majority there bar, originally received issue. In the case at governs this be sentenced as However, required because probation. there is no statu- felon, ineligible probation. Since X he was Class facts, the sentence was under these tory authority allowing probation result, giv- to consider there is no reason inception. from its As void on a former against his current sentence based ing defendant credit Furthermore, fundamentally it neither sentence that was void. did not process that the circuit court nor of due unfair a violation probation. to receive credit for the void decide defendant was whether view, be af- follow, the circuit court should my For the reasons that firmed. first, findings: agree majority
I on two (see “illegal” 3d at or void original sentence was 459). agree I further that neither section nor section 5—8— 7(b) (730 of the Unified Code Corrections ILCS 5—8— 5/5— (West 7(b) (the 2002)) Code), credit, which both deal with applies under the circumstances of this case. See 366 Ill. 3d However, 459-60. spite authority the absence of to do so, majority clarify remands the case to the circuit why court to give did not probation, i.e., defendant credit for whether it considered so, and declined to do simply whether it failed to consider it altogether. puzzling directive to the trial court because it seems require the court to probation pursuant consider credit for (relative of the Code to credit for lesser sentences prison) than finding after that section to be inapplicable. 366 Ill. App.
I. CONTRARY LEGAL AUTHORITY
I
agree
do not
that defendant’s circumstances are “so bizarre”
because the exact issue raised here has been addressed and decided
Wade,
both
this court and the
Supreme
Illinois
Court in
(1985),
aff’d,
In the instant mistakenly a received sentence pursuant agreement though subject to a probation even he was sentencing provision pursuant Class X to section 5—3(c)(8) (730 (West 2002)) 5—3(c)(8) of the Code ILCS due 5/5 — Therefore, Wade, in convictions. as sentence was Wade, 454, 4; 116 Ill. 2d see A void. at also 366 Ill. 459. that conform a statutory requirement sentence does not is void and
465 107, be, Arna, Ill. 2d 113 v. 168 People at time. corrected (1995). sentence the court orders a lesser A void judgment is where 1, (1987); Wade, 116 Ill. 2d 6 v. by People statute. than is mandated (2002). court, 785, upon A trial 334 Ill. 789 People Young, v. impose a fine or authority to assess a guilt, has no determination of v. People Daley ex rel. by statute. provided that sentence other than Bentivenga, 83 (1986); Carey v. 26, People ex rel. Suria, 112 Ill. 2d 38 552, Moran, Ill. 2d 556 (1981); v. 54 537, People ex rel. Ward Ill. 2d 542 612, Salter, Ill. 2d 615 (1973); v. People ex rel. Ward a sentence have held that void supreme and our court court imposed “[a] and that void considered to have never been effect, inception.” legal since complete nullity, without is treated as (1996), part in & rev’d O’Neal, App. 3d People v. aff’d (1997) Garcia, (holding that Ill. 2d by part People resentencing on remand for original sentence consideration of void). Although O’Neal inapplicable original sentences were Code, conclu inescapable deal with different sections Garcia has no effect is that a void sentence sion to be from those cases drawn (stating Garcia, subsequent valid sentence. than, than, less or subsequent greater “will not be valid sentence ]”). Roth, Inc., also equal original [void] sentence[ [an] (1952) legal no ef (holding “a decree has 412 Ill. fect”). void that, It under these circumstances absent seems obvious authority, is not to receive credit contrary statutory entitled Wade, 137 pursuant that he served to the void sentence. case from the majority distinguish the facts does Wade, say here are “so bizarre when except facts in that the facts 3d at 461. comparison with our law.” viewed odd, ordinary; “strikingly out The term “bizarre” is defined mode; sensational involving extravagant, style or eccentric Dictionary Collegiate Merriam-Webster’s incongruities.” contrasts or (10th 1996). nothing strikingly out of the There can be ed. before appeared scenario ordinary about this case where an identical Further, in the supreme past. this court and was affirmed Wade, 137 Ill. this case and meaningful there is distinction between no in Wade were and the defendant App. 3d at 882. Defendant here properly sentenced improperly sentenced to and later were void. Both finding sentences prison after *15 for the Wade, or fault undisputed responsibility here and in 463. Both upon mistaken fell the State. 366 subsequent valid for credit defendants asked this court of their and conditions fully complying with the terms sentence after void Finally, sentences. both defendants on proba were free tion they should view, have been In my incarcerated. the facts of Wade those the instant case are in all ways cogent identical Therefore, the outcome. the Wade decision cannot be characterized as “wholly irrelevant to the instant cause.” 366 Ill. 3d at 461.
Further, the majority’s decision a conflict creates with our own dispenses decision Wade and improperly with relevant Illinois Wade, Supreme authority. 1; Wade, Court 116 Ill. 2d 878. It is well-established law in that an appellate Illinois intermediate court, ours, may such as not pronounced by alter law as our state supreme court. supreme Our court stated: system
“[T]he nature of requires our court that law established question court’s decision be followedwhen decided arises again before a court. If precedent judicially is not respected, the decision, uniformity stability proper which is essential justice, destroyed.” Rickey administration of Chicago will be Authority, Transit 98 Ill. 2d The Wade directly point case is on dispositive supreme authority which this court is obliged Goebel, to follow. See (1996) (acknowledging obliged are “[w]e court”). precedents to follow the of our supreme II. DUE PROCESS AND FUNDAMENTAL FAIRNESS It is difficult to square majority’s holding with the facts authority explanation, majority case. Without citation to states: “Essentially, it original probation- does not matter here that the ary Rather, that, sentence is void. what does matter is were we to simply affirm the decision below without remand for further sentence, creating, consideration of defendant’s final we would be effect, similarly two classes situated defendants treated in vastly is, different manners. That under our scheme as originally evident in section a defendant placed on its requires but who then violates terms and the trial again court to impose prison become involved his cause to potential opportunity sentence has the to receive some consider- (in Meanwhile, ation for his time a defendant here) the same originally placed shoes complies terms, and who every participates one in the difficulties, community police legal without further encounters or period and meets all other conditions for a absolutely of time receive would all, simply no consideration at because his declared void rather than revoked. later inherently, fundamentally, unfair. to mention Ultimately, encroaching upon process rights.” we are due App. 3d at 461-62. *16 a decision court or in the circuit
I the outcome do not believe that inherently fundamentally or be either remand this case would not to right to upon defendant’s infringe a result would or that such unfair or identify any constitutional does not majority The process. due for against prison sentence credit a right to receive fundamental defendant was whether explain nor does it equal process due or procedural process, due substantive deprived of a credited right to a The have protection. entirely statutory one crafted purely a prison sentence is subsequent principles constitutional legislature not arise from the and does see, I do not majority explain, does not fairness. The fundamental here especially violated rights due were process how including majority, agree parties, all free on imprisoned. he should have been that majority concludes, defendant to
Additionally, contrary what probation and “similarly properly to one received situated” who felon, only A Class X who can App. it. 366 Ill. at 462. violated a criminal of imprisonment, compared cannot be to lesser receive thus, eligible probation, it cannot be said that fender who is put in a worse “vastly different manner” or defendant is treated a Indeed, the legally eligible than one position who defendant was treated from these facts that inference to be drawn he received similarly situated Class X felons because much better than jail. should have been months of freedom when he Moreover, suggestion a that our support there is no evidence to did not recognize the vital conflict” and supreme “fail[ed] court has to defendant’s situation.” 366 the factual context of “address[ ] as if the First, appears I exists. It 3d at 461. do not believe conflict Supreme ability Court’s to quarrel the Illinois majority’s is not with to conflict,” legislature’s failure recognize “the vital but with to credit gives opportunity a defendant the receive enact a statute that Next, that although logical presume I find it for a void sentence. legislature why such statute exists because the reason no effect, legal would be within a has no recognizes that void sentence if it legislature provision, a chose to craft such province responsibil so, undertake wholly improper do but for this ity. 216, Garlick, v. majority
The
cites
duty
uphold
to heed and
(1977),
that it “is our
proposition
for the
in our
fairness
and fundamental
principles
basic
common sense
process
due
case
procedural
is a
legal system.”
Garlick case
placed
to be
right of a defendant not
deals with the constitutional
Garlick,
220,
citing
3d at
Pate
trial while
is insane.
Robinson,
(1966).
L. Ed.
U.S.
The majority condemns the “unfairness” of a result that allows defendant who has potentially violated his receive credit portion has, some effect, served while someone who “done right” everything majority, however, ignores not. The the fact *17 that defendant was neither unfairly, mistreated nor dealt with but was beneficiary fortuitous of freedom to which he was not entitled. Simply put, a mistake occurred that resulted in additional months of freedom for defendant. The fact is not entitled to original credit for the void sentence implicate does not issues of process. fundamental fairness similarly or due Defendant is not situ- ated to eligible Defendant is not entitled to be “treated better” than defendant who receives and then violates because defendant Moreover, here is Class X felon. violates principles of judicial common sense and is a waste resources to remand a case to the circuit court to decide X whether Class felon should receive credit Supreme well-established Illinois Appellate authority Court he holds that not.
I, therefore, dissent. ILLINOIS, THE OF PEOPLE THE OF Plaintiff-Appellee, STATE v. RAMON DOMINGUEZ, J. Defendant-Appellant. 2-03-1016,
Second District Nos. - 1212 cons. 2-03 Opinion filed June