People v. Rymut

576 N.E.2d 1208, 216 Ill. App. 3d 920, 160 Ill. Dec. 254, 1991 Ill. App. LEXIS 1294
CourtAppellate Court of Illinois
DecidedJuly 30, 1991
Docket2-90-0737
StatusPublished
Cited by9 cases

This text of 576 N.E.2d 1208 (People v. Rymut) 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. Rymut, 576 N.E.2d 1208, 216 Ill. App. 3d 920, 160 Ill. Dec. 254, 1991 Ill. App. LEXIS 1294 (Ill. Ct. App. 1991).

Opinion

JUSTICE WOODWARD

delivered the opinion of the court:

Defendant, David Rymut, appeals from an order entered by the trial court which modified his terms of probation. The trial court found that defendant was not entitled to a good behavior allowance credit pursuant to section 32 of the County Jail Good Behavior Allowance Act (Act) (Ill. Rev. Stat. 1989, ch. 75, par. 32) because the victim suffered emotional distress that resulted in physical manifestations as a result of defendant’s criminal act. Defendant contends on appeal that the trial court lacked the authority to deny him a statutory good behavior allowance. Defendant also contends that the term “physical harm” contained in the Act does not include emotional distress; therefore, the trial court erred in withholding defendant’s statutory right to a good time allowance based on equating emotional distress with physical harm.

Defendant was charged by indictment with residential burglary (Ill. Rev. Stat. 1989, ch. 38, par. 19 — 3(a)) and aggravated criminal sexual abuse (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 16(d)). During the trial, the 13-year-old victim testified that she awoke in her home to find defendant lying next to her. The victim testified that defendant rubbed her stomach and her left breast. The victim asked defendant to leave, and defendant did leave but told the victim not to tell her parents. The victim also prepared a victim impact statement in which she stated that after the incident she was sick to her stomach and had terrible nightmares. She also stated that she was afraid to sleep in her room alone, was suffering from depression, and cried a lot.

After a bench trial, defendant was found not guilty of the residential burglary charge but guilty of aggravated criminal sexual assault. The trial court sentenced defendant to 48 months’ probation with the condition that he serve 180 days in the county jail. Defendant was also required to undergo psychiatric and drug and alcohol testing and treatment, perform 160 hours of community service, pay restitution for the victim’s counseling and to the advocacy center, and finally to have no contact with the victim or her family.

Sentence was pronounced on April 11, 1990. In pronouncing sentence, the trial court made no reference as to whether defendant was entitled to a good behavior allowance credit. Also, the court did not check off the box on the probation order which would have denied defendant a good behavior allowance credit.

On June 26, 1990, defendant filed a motion to clarify or modify the terms of his probation. Defendant asked the trial court either to clarify defendant’s probation order so that it showed defendant was entitled to a good behavior allowance credit or modify the order to show that defendant was entitled to a good behavior allowance credit.

In ruling on defendant’s motion, the trial court recognized that it had made no comments at the time of defendant’s sentencing as to whether defendant was entitled to a good behavior allowance credit. The trial court also admitted that during the sentencing hearings it made no findings in reference to the existence or nonexistence of any physical harm. However, the trial court denied defendant’s motion and stated that the crime required a six-month sentence. The trial court found that defendant had inflicted emotional distress which resulted in physical manifestations upon the victim and this required a denial of the good behavior allowance credit based on section 32 of the Act.

On July 3, 1990, when the trial court announced its decision on defendant’s motion, it did not state that a written order was to follow. A clerk’s minutes were filed with the record which summarized the trial court’s decision; however, it too did not state that a written order was to follow. Also on July 3, 1990, defendant filed his notice of appeal. On July 5, 1990, the trial court entered a written order apparently presented by defendant which again enumerated the court’s decision of July 3.

As his issue on appeal, defendant claims that he is entitled to the good behavior allowance credit pursuant to section 32 of the Act. Defendant first contends that the trial court was without authority to deny him a statutory allowance subsequent to sentencing. Also, defendant contends that the trial court erred in refusing to grant defendant a good behavior allowance credit based on defendant’s infliction of emotional distress upon the victim. According to the statute in question:

“The good behavior of any person who commences a sentence of confinement in a county jail for a fixed term of imprisonment after January 1, 1987 shall entitle such person beginning on the date of sentence to a good behavior allowance, except that: (1) a person who inflicted physical harm upon another person in committing the offense for which he is confined shall receive no good behavior allowance.” (Ill. Rev. Stat. 1989, ch. 75, par. 32.)

Defendant contends that, where the trial court found only that he inflicted emotional distress upon the victim, this was not the same as “physical harm” upon a victim and the trial court erred in equating physical harm with emotional distress.

The State argues that we do not have jurisdiction to hear this appeal because defendant filed his motion to clarify or modify the order of probation more than 30 days after judgment had been entered in the trial court. We disagree. Section 5 — 6—4(f) of the Unified Code of Corrections states:

“The conditions of probation, of conditional discharge and of supervision may be modified by the court on motion of the probation officer or on its own motion or at the request of the offender after notice and a hearing.” Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 6—4(f).

In People v. Tipton (1981), 88 Ill. 2d 256, 264-65, the supreme court determined that this section gives the trial court continuing au- - thority to deal with changing conditions during probation. Although under the general rule felony sentences cannot be challenged more than 30 days after judgment (Ill. Rev. Stat. 1989, ch. 38, par. 1005— 8 — 1(c)), here the specific authority of section 5 — 6—4(f) controls over the general rule. (Tipton, 88 Ill. 2d at 265.) Thus, defendant could ask for a modification of his terms of probation after 30 days had passed from the sentencing order.

In the present cause, although defendant asked the court to modify his terms of probation and his request was denied, in actuality, what the trial court did was to modify defendant’s terms of probation. The trial court admitted that it had made no findings during the sentencing phase concerning whether defendant had caused physical harm to the victim so as to be unqualified for the good behavior allowance. The trial court also admitted it had not found defendant ineligible for the good behavior allowance during sentencing. The form which listed defendant’s terms of probation contained a box which could be checked if the good behavior allowance was not to be allowed. This box was not checked. Considering this factual situation, the trial court’s order of denial of defendant’s motion was a modification of defendant’s terms of probation so that he was no longer entitled to a good behavior allowance. Under Supreme Court Rule 604(b), an order modifying probation may be appealed (134 Ill. 2d R.

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Cite This Page — Counsel Stack

Bluebook (online)
576 N.E.2d 1208, 216 Ill. App. 3d 920, 160 Ill. Dec. 254, 1991 Ill. App. LEXIS 1294, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-rymut-illappct-1991.