People v. Gitchel

736 N.E.2d 645, 316 Ill. App. 3d 213, 249 Ill. Dec. 451, 2000 Ill. App. LEXIS 950
CourtAppellate Court of Illinois
DecidedSeptember 12, 2000
Docket4-99-0572
StatusPublished
Cited by9 cases

This text of 736 N.E.2d 645 (People v. Gitchel) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Gitchel, 736 N.E.2d 645, 316 Ill. App. 3d 213, 249 Ill. Dec. 451, 2000 Ill. App. LEXIS 950 (Ill. Ct. App. 2000).

Opinions

JUSTICE MYERSCOUGH

delivered the opinion of the court:

In February 1998, defendant pleaded guilty to one count of burglary (720 ILCS 5/19 — 1 (West 1998)), and the trial court sentenced him to 12 months’ probation with 10 weekends of periodic imprisonment and fined him $300. In February 1999, the court revoked defendant’s probation, and in June 1999, the court resentenced him to 3 years’ imprisonment with 30 days’ credit for time served in the county jail as part of his probation sentence. Defendant appeals, contending that (1) he is entitled to (a) an additional 9 days’ sentence credit for time spent in jail awaiting sentencing and (b) a corresponding $45 credit against his fine; and (2) the case should be remanded for a hearing on his postsentencing motion, which was filed on July 6, 1999, simultaneously with his notice of appeal, but which the trial court did not consider. We affirm as modified and remand with directions.

I. PERIODIC IMPRISONMENT EQUATES TO SENTENCE CREDIT FOR DURATION OF ITS TERM

The record reflects, and the State concedes, defendant was incarcerated for 39 days prior to sentencing on revocation of probation, but the trial court credited him with only the last 30 days. However, where a defendant serves jail time on weekends under a sentence of periodic imprisonment (730 ILCS 5/5 — 7—1 (West 1998)), he is entitled to credit for all the days during that period, and not just for time actually spent in confinement. People v. Scheib, 76 Ill. 2d 244, 254-55, 390 N.E.2d 872, 876-77 (1979); People v. Hutchcraft, 215 Ill. App. 3d 533, 539, 574 N.E.2d 1337, 1340-41 (1991). The governing statutory provisions are explicit. Section 5 — 7—1(d) of the Unified Code of Corrections (Unified Code) (730 ILCS 5/5 — 7—1(d) (West 1998)) provides: “The term of the sentence shall be calculated upon the basis of the duration of its term rather than upon the basis of the actual days spent in confinement.” Section 5 — 7—2(c) of the Unified Code states: “That part of the term under paragraph (d) of [s]eetion 5 — 7—1 which has been served under the sentence of periodic imprisonment shall be credited against a sentence of imprisonment.” 730 ILCS 5/5 — 7—2(c) (West 1998). Sentence credit is generally considered under section 5 — 8—7(b) of the Unified Code (730 ILCS 5/5 — 8—7(b) (West 1998) (“shall be given credit *** for time spent in custody as a result of the offense for which the sentence was imposed”)); crediting for periodic imprisonment is an exception, however, more specifically addressed by the aforementioned sections, which control as to the duration of its term.

Counting from February 27, 1998, through May 3, 1998, the last day of 10 weekends of periodic imprisonment, plus 9 days served prior to that, yields 75 days of credit. Accordingly, defendant is entitled to an additional 45 days of sentence credit. We note that the form judgment of sentence used here may contribute to the problem, as item C states “The defendant is entitled to credit for time actually served in custody of__days.” This form could be updated to provide, for example, as follows:

C. (1) The defendant is entitled to time served on periodic imprisonment for the duration of its term from_to_, for a total of__days;
(2) the defendant is entitled to credit for time served awaiting sentence on a bailable offense of_days; and a corresponding credit against $_fine of $_($5/day); and
(3) the defendant is entitled to credit for other time actually served in custody of_days.

II. CREDIT AGAINST FINE FOR TIME AWAITING SENTENCE FOR BAILABLE OFFENSE

Defendant is further entitled to a corresponding $45 credit against the fine imposed for 9 days served awaiting sentence on the bailable offense of burglary. People v. Woodard, 175 Ill. 2d 435, 453-57, 677 N.E.2d 935, 944-46 (1997).

III. NO REMAND FOR HEARING ON POSTTRIAL MOTION FILED WITH NOTICE OF APPEAL

Finally, defendant contends that the case should be remanded for a hearing on his postsentencing motion to withdraw his plea in which he inartfully alleged he received ineffective assistance of counsel that resulted in his admission to the allegations of the petition to revoke probation. We disagree. In People v. Bounds, 182, Ill. 2d 1, 3, 694 N.E.2d 560, 561 (1998), the supreme court held that the jurisdiction of the appellate court attaches instanter when a defendant simultaneously files a notice of appeal and a postsentencing motion. Since the trial court was without jurisdiction to consider the postsentencing motion, it is rendered, in effect, a nullity. It necessarily follows that such a motion does not reside in legal limbo only to be resurrected at the conclusion of appellate review. If the trial court was without jurisdiction to consider the motion when it was filed, it is without jurisdiction to consider it now.

Before concluding, we note that the Second District Appellate Court recently refused to apply Bounds in a case where defendant filed a notice of appeal five days before filing a motion to reconsider sentence. People v. Clark, 314 Ill. App. 3d 181, 182-84 (2000). In doing so, the court reasoned that (1) Bounds involved a postconviction appeal rather than a direct appeal following conviction, (2) the motion and the notice of appeal were not filed simultaneously, and (3) the substance of the motion involved a challenge to defendant’s sentence, which was governed by section 5 — 8—1(c) of the Unified Code (730 ILCS 5/5 — 8—1(c) (West 1998)), which provides:

“If a motion filed pursuant to this subsection [to reconsider sentence] is timely filed within 30 days after the sentence is imposed, then for purposes of perfecting an appeal, a final judgment shall not be considered to have been entered until the motion to reduce a sentence has been decided by order entered by the trial court.” 730 ILCS 5/5 — 8—1(c) (West 1998).

In doing so, the court was critical of the fact that the supreme court “did not acknowledge any of the appellate court decisions that were decided before Bounds and that reached a contrary conclusion.” Clark, 314 Ill. App. 3d at 182.

We find that the stated rationale in Clark does not withstand close scrutiny and, in any event, it does not affect the result in this case. In the first instance, the supreme court in Bounds drew no distinction between postconviction and direct appeals following trial proceedings. To the contrary, the court specifically based its ruling on an interpretation of how criminal rules governing appeals operate.

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People v. Gitchel
736 N.E.2d 645 (Appellate Court of Illinois, 2000)

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Bluebook (online)
736 N.E.2d 645, 316 Ill. App. 3d 213, 249 Ill. Dec. 451, 2000 Ill. App. LEXIS 950, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-gitchel-illappct-2000.