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People Ex Rel. Weaver v. Longo

OPINION FILED MARCH 29, 1974.

THE PEOPLE EX REL. JAMES WEAVER, RELATOR,

v.

JOSEPH J. LONGO ET AL., RESPONDENTS.



Original petition for writ of mandamus

MR. CHIEF JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:

The relator, James Weaver, was convicted of attempted armed robbery and had served 5 years of a 13-to-14-year sentence of imprisonment. He sought and was granted leave to file this original mandamus action seeking issuance of the writ to compel respondents, the chairman and members of the Parole and Pardon Board of the State of Illinois, to apply to his case the provisions of the recently enacted Unified Code of Corrections which, if applicable, would make him eligible for parole consideration.

On October 1, 1973, relator made a demand upon respondents to consider him for parole and that demand was refused. He now contends that the new Unified Code of Corrections (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1001-1-1 et seq.) provides that an individual sentenced to the Department of Corrections prior to January 1, 1973, the effective date of the new Code, is eligible for parole on the basis of the sentence he would have received thereunder.

Relator relies particularly upon section 3-3-3 of the Code, which provides:

"(a) Every person serving a term of imprisonment under Section 5-8-1 shall be eligible for parole when he has served:

(1) the minimum term of an indeterminate sentence less time credit for good behavior, or 20 years less time credit for good behavior, whichever is less; or

(2) 20 years of a life sentence less time credit for good behavior; or

(3) 20 years or one-third of a determinate sentence, whichever is less, less time credit for good behavior.

(b) Every person committed to the Juvenile Division under Section 5-10 of the Juvenile Court Act or Section 5-8-6 of this Code and confined in the State correctional institutions or facilities shall be eligible for parole without regard to the length of time the person has been confined or whether the person has served any minimum term imposed.

(c) Any person in the custody of the Department of Corrections on the date this Section becomes operative who, under prior law, would have been eligible for parole sooner than provided in this Section, shall have his parole eligibility determined under such prior law; otherwise his eligibility shall be determined under this Article and Article 8 of Chapter V." Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1003-3-3, as subsequently amended by Public Act 78-939.

Under prior law (Ill. Rev. Stat. 1971, ch. 38, par. 123-2), prisoners were eligible for parole after serving:

"(1) One-third of a determinate sentence less time credit for good behavior; or

(2) The minimum term of an indeterminate sentence less time credit ...


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