People v. Jones

481 N.E.2d 726, 134 Ill. App. 3d 1048, 89 Ill. Dec. 883, 1985 Ill. App. LEXIS 2205
Appellate Court of Illinois·Decided June 24, 1985·No. 5-82-0668·Published·Cited by 17 cases

Opinion

JUSTICE WELCH

delivered the opinion of the court:

Defendant, Bennie Ray Jones, pleaded guilty to aggravated battery and was sentenced on December 11, 1981, to 30 months’ probation. As an incident of probation, defendant served six months’ incarceration. The State subsequently filed a petition to revoke probation, which alleged that defendant had been convicted of rape. The rape was alleged to have occurred on March 5, 1982. Defendant’s probation was revoked after a hearing, and defendant was sentenced to five years’ imprisonment, which was to be served consecutively to his 30-year sentence, which had been imposed upon the rape conviction. On appeal, defendant contends that if his conviction for rape is reversed by this court, the order revoking defendant’s probation must also be reversed. He also contends that the court improperly sentenced defendant to consecutive sentences.

Defendant’s first issue is now moot as this court affirmed his rape conviction pursuant to Supreme Court Rule 23 (87 Ill. 2d R. 23). People v. Jones (1984), 125 Ill. App. 3d 1180.

Concerning whether imposition of a consecutive sentence was authorized, defendant argues that section 5 — 6—4(e) of the Unified Code of Corrections (the Code) precludes imposition of a consecutive sentence upon revocation of probation. Section 5 — 6—4(e) provides:

“If the court finds that the offender has violated a condition at any time prior to the expiration or termination of the period, it may continue him on the existing sentence, with or without modifying or enlarging the conditions, or may impose any other sentence that was available under Section 5 — 5—3 at the time of initial sentencing.” (Ill. Rev. Stat. 1983, ch. 38, par. 1005— 6-4(e).)

Defendant reasons that at the time defendant was sentenced to probation, i.e., “at the time of initial sentencing,” he had no other convictions and hence no other sentences to serve consecutively to any period of imprisonment then imposed; therefore, a consecutive sentence was not authorized upon revocation, since it could not have been imposed “at the time of initial sentencing.”

This court and our supreme court have held that where a defendant’s probation is revoked due to a subsequent offense, the defendant may be sentenced to a term of imprisonment to be served consecutively to the term of imprisonment imposed for the offense which constituted the violation of the terms of probation. (People v. Nelson (1962), 26 Ill. 2d 337, 186 N.E.2d 362; People v. May (1971), 132 Ill. App. 2d 766, 270 N.E.2d 440; People v. Jackson (1973), 13 Ill. App. 3d 232, 300 N.E.2d 557.) However, each of these opinions concerns sentences predating the effective date of the Unified Code of Corrections as the law of this State. Subsequent cases have dealt with the subject of consecutive sentencing upon revocation of probation (see People v. Dawson (1975), 30 Ill. App. 3d 147, 332 N.E.2d 58; People v. Stewart (1978), 61 Ill. App. 3d 111, 377 N.E.2d 1112), but our research discloses no cases in which the authority of the trial court to impose such a sentence under section 5 — 6—4(e) of the Code was questioned and considered.

The prime consideration in construing a statutory enactment is to give effect to the intent of the legislature. In ascertaining the legislature’s intention, the entire statute must be considered, as well as the evil to be remedied and the object to be attained. Where several constructions may be placed upon a statute, the court should select that which leads to a logical result and avoid those which would be absurd. It is presumed that the legislature in passing legislation did not intend absurdity, inconvenience or injustice. (People v. Sansone (1981), 94 Ill. App. 3d 271, 273, 418 N.E.2d 862, 864.) Section 5-5-3 of the Code, referred to by section 5 — 6—4(e), which is relied upon by defendant, states that every person convicted of an offense shall be sentenced as provided in section 5 — 5—3. (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 5—3(a).) Section 5 — 5—3 may be viewed as no more than a list of generally available sentencing alternatives. (See Ill. Ann. Stat., ch. 38, par. 1005 — 5—3, Council Commentary, at 357 (Smith-Hurd 1982).) Section 5 — 5—3(b) lists, as authorized dispositions, a term of imprisonment and various alternatives thereto, including probation. (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 5—3(b).) The subject of concurrent versus consecutive sentencing is not addressed in section 5 — 5— 3. Examining section 5 — 6—4(e) and its reference to section 5 — 5—3 in this light, we view section 5 — 6—4(e) as intended by the legislature to authorize the sentencing of a defendant whose probation has been revoked to either a term of imprisonment or any alternative thereto which appeared in section 5 — 5—3 at the time of initial sentencing. By sentencing defendant to a term of imprisonment, a disposition authorized by section 5 — 5—3(b), the trial court complied with the provisions of section 5 — 6—4(e), regardless of whether or not said term of imprisonment was imposed consecutively to the term of imprisonment imposed for the subsequent offense.

In so concluding, we note that the Code includes detailed and comprehensive provisions regarding the imposition of consecutive sentences. (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 8—4.) Section 5 — 8—4 does not address the instant situation, though prior to enactment of the Code this situation was not novel. (People v. Nelson (1962), 26 Ill. 2d 337, 186 N.E.2d 362; People v. May (1971), 132 Ill. App. 2d 766, 270 N.E.2d 440; People v. Jackson (1972), 13 Ill. App. 3d 232, 300 N.E.2d 557.) It is presumed that the legislature acted with full knowledge of the judicial decisions concerning such prior and existing law and legislation. (Kozak v. Retirement Board (1981), 99 Ill. App. 3d 1015, 1018, 425 N.E.2d 1371, 1373, aff’d (1983), 95 Ill. 2d 211, 447 N.E.2d 394.) Generally, a statute should not be construed to effect a change in settled law unless its terms require such construction. Where the statute was enacted after judicial opinions on the matter, it must be presumed that the legislature acted with knowledge of the prevailing case law. (People v. Monoson (1979), 75 Ill. App. 3d 1, 9, 393 N.E.2d 1239, 1246.) The legislature was able to plainly express its intention to overrule Nelson, May, and Jackson, had it chosen to do so. Such not being done, we interpret our legislature’s failure to do so as an indication that those cases remain the law of this jurisdiction.

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People v. Jones, 481 N.E.2d 726, 134 Ill. App. 3d 1048, 89 Ill. Dec. 883, 1985 Ill. App. LEXIS 2205 (Ill. Ct. App. 1985).

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