People v. Hutchcraft

574 N.E.2d 1337, 215 Ill. App. 3d 533, 158 Ill. Dec. 944, 1991 Ill. App. LEXIS 1149
CourtAppellate Court of Illinois
DecidedJune 28, 1991
Docket4-90-0253
StatusPublished
Cited by13 cases

This text of 574 N.E.2d 1337 (People v. Hutchcraft) 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. Hutchcraft, 574 N.E.2d 1337, 215 Ill. App. 3d 533, 158 Ill. Dec. 944, 1991 Ill. App. LEXIS 1149 (Ill. Ct. App. 1991).

Opinion

JUSTICE McCULLOUGH

delivered the opinion of the court:

On revocation of probation, defendant was sentenced to three years’ imprisonment for burglary (Ill. Rev. Stat. 1985, ch. 38, par. 19 — 1(a)), with credit for 149 days served. On appeal, defendant argues he is entitled to additional sentence credit (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—7(b)), and requests remand to the trial court for recalculation of the credit he is due. He maintains he served at least 263 days prior to the date of sentencing on revocation, including time served for contempt of court.

At the outset, we note that the presentence report prepared in this cause stated defendant had spent 118 days in custody in connection with this case. The probation officer’s testimony at sentencing on April 5, 1990, as transcribed in the record on appeal, uses the figure 180 days, though no correction to the presentence report was made. At the conclusion of the sentencing hearing, the judge directed the special prosecutor and defense counsel to “figure up” the amount of sentence credit defendant should receive, stating that if there was a dispute, he would resolve it. The written judgment order credited defendant with 149 days. As this court stated in People v. Compton (1990), 193 Ill. App. 3d 896, 904, 550 N.E.2d 640, 645, if a defendant is held in custody for any part of a day, he is entitled to credit against his sentence for that day; i.e., in counting days for purposes of sentence credit under section 5 — 8—7(b) of the Unified Code of Corrections (Unified Code) (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—7(b)), both the first and last days are counted.

I. TIME SERVED IN MAY 1986, AT TIME OF ARREST

On May 5, 1986, defendant was charged by information in this cause, Logan County case No. 86 — CF—28, with the burglary of Adams School, in Lincoln, Illinois. Defendant maintains he was arrested on May 5, 1986, although the record does not definitively show the date of arrest; the bail bond form shows bond was received on May 12, and the form was filed in the circuit clerk’s office and a receipt voucher issued on May 13, 1986. Accordingly, as the first matter on remand, should the court find that defendant was in fact arrested on May 5, given his release on bond on May 12, 1986, he would have been incarcerated for some portion of eight days, and is therefore entitled to eight days’ sentence credit; if arrested on another date, he should be credited accordingly.

II. TIME SERVED AS A CONDITION OF PROBATION

Defendant pleaded guilty to the offense in December 1986. On January 26, 1987, he was sentenced to 30 months’ probation, including a condition that he serve 180 days’ incarceration in the county jail commencing at 6 p.m. that day. Defendant now contends he should be credited 180 days for this period. Had he served the entire 180-day term, he would have been released on July 24, 1987, and he would be entitled to such credit. It appears, however, that he was released early, since on June 2, 1987, the State filed a petition to revoke defendant’s probation or in the alternative to hold him in contempt, alleging that on May 31, 1987, he committed the offense of unlawful consumption of alcohol by a minor (Ill. Rev. Stat. 1985, ch. 43, par. 134a). Defendant is not entitled to 180 days’ credit if he did not serve the full 180 days because of credit for time served. He would receive double credit to rule otherwise. Therefore, as the second item on remand, the parties may present evidence to show the date of defendant’s release from incarceration served as a condition of his probation, and sentence credit shall be calculated to include both the first and last day of incarceration, consistent with Compton. See People v. Scheib (1979), 76 Ill. 2d 244, 251-54, 390 N.E.2d 872, 875-76 (under section 5 — 8—7(b) of the Unified Code (Ill. Rev. Stat. 1975, ch. 38, par. 1005 — 8—7(b)), a defendant must be fully credited for any time spent in jail for a particular offense regardless of whether the time in confinement was considered served as part of a condition of probation; and he should be credited under section 5 — 8—7(b) the same as a defendant who spent time in jail prior to trial because of inability to furnish bail).

III. IF ARRESTED ON JUNE 1987 PETITION TO REVOKE

Defendant appeared in court on June 2, 1987, and was given a copy of the petition to revoke or alternatively to hold him in contempt, and his bond was set. The bail bond form shows bond was made that same day, though the form was filed in the office of the circuit clerk and noted on the docket sheet on June 3, 1987. As defense counsel notes, the record does not show defendant was arrested on the petition to revoke. Hence, as the third matter to be considered on remand, if it is determined that defendant was arrested and taken into custody on the petition to revoke filed June 2, 1987, he should be credited accordingly. On June 24, 1987, the court entered a written contempt order sentencing him to 40 hours’ public service.

IV. OCTOBER 1987 AND NOVEMBER 1988 CONTEMPT ORDERS

On August 4, 1987, the State filed another petition to revoke probation, or in the alternative to hold defendant in contempt, based on defendant’s failure to perform 40 hours’ public service work for contempt.

At hearing on October 1, 1987, the circuit court found defendant in wilful contempt of court based on the August 1987 petition, and entered a written order of judgment and sentence thereon, sentencing him to a term of four days’ periodic imprisonment in the Logan County jail, to commence running on October 5, 1987, at 2:30 p.m. through October 9, 1987, at 7:30 a.m., with daily release from 7:30 a.m. to 2:30 p.m. Defendant now claims he is entitled to five days’ sentence credit herein for these days served for contempt of court.

On August 19, 1988, the State filed yet another petition to revoke defendant’s probation or in the alternative to hold him in contempt, alleging defendant had wilfully failed to report to the probation officer for the months of April, May, June, and July 1988, and had further wilfully failed to advise the probation office of his current address, all in violation of the conditions of his probation. The entry on the docket sheet shows that at the hearing on November 4, 1988, defendant was found in wilful contempt of court and was sentenced to 10 weekends of periodic imprisonment in the Logan County jail beginning Friday, November 11, 1988; the order of periodic imprisonment filed that date stated, however, that defendant had been adjudged guilty of violating probation and sentenced him to 10 weekends’ periodic imprisonment beginning at 6 p.m. that date, with release on Sunday, November 13, 1988, at 6 p.m., and continuing for the following nine weekends.

As the orders were periodic imprisonment, if defendant is entitled to credit in this cause for this time served for contempt of court, he is entitled to credit on the basis of “the duration of its term rather than upon the basis of the actual days spent in confinement.” Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 7—1(d); see also Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 7—2(c); Scheib, 76 Ill.

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Cite This Page — Counsel Stack

Bluebook (online)
574 N.E.2d 1337, 215 Ill. App. 3d 533, 158 Ill. Dec. 944, 1991 Ill. App. LEXIS 1149, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-hutchcraft-illappct-1991.