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People v. Mitchell

OPINION FILED SEPTEMBER 30, 1977.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

THOMAS D. MITCHELL, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Woodford County; the Hon. SAM HARROD, III, Judge, presiding.

MR. JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:

Following a bench trial in the circuit court of Woodford County, the defendant, Thomas Mitchell, was found guilty of the offense of reckless driving in violation of section 11-503 of the Illinois Vehicle Code (Ill. Rev. Stat. 1975, ch. 95 1/2, par. 11-503). A motion in arrest of judgment was filed, heard by the court and denied. The court then imposed a fine of $250, and this appeal ensued.

Defendant's only contention on appeal is that the trial judge abused his discretion in imposing the fine without first considering his financial resources and ability to pay in accordance with section 5-9-1(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1975, ch. 38, par. 1005-9-1(c)).

As authority for his position, defendant cites only section 2.7 of the ABA Standards regarding sentencing alternatives and procedures (1968), and the Council Commentary following section 5-9-1 (Ill. Ann. Stat., ch. 38, par. 1005-9-1, Council Commentary, at 520 (Smith-Hurd 1976)). The latter says, in part, that "fines are purposely discouraged by the Code." While giving due deference to the learning and expertise of the council, we fail to find any such statement of policy in the Code. Contrariwise, unless lesser offenses, especially traffic offenses, are disposed of by fine only in substantial numbers, county jails would be overwhelmed and probation departments inundated with those committed to imprisonment, probation or conditional release, which are the only other sensible alternatives.

Section 5-9-1(c) is stronger than ABA Standard 2.7, in that the standard indicates a court "should consider" financial resources, while the Unified Code of Corrections says the court "shall consider" the same. There is a meaningful comment on the matter in S.A. Schiller, The American Bar Association Standards for the Administration of Criminal Justice: Illinois' Compliance (Chi. Bar. Assoc. 1974). In his commentary on the matter of inquiry by a court into financial ability to pay a fine, the author says in part: "Interviews with judicial personnel indicate that there are no standard operating procedures which have been developed to deal with these criteria in relation to sentencing." Schiller, at 190.

It is thus apparent that neither the Council Commentary nor the ABA Standard is of great assistance in solving the problem presented here.

• 1, 2 The question of financial inquiry cannot be wrenched out of the entire sentencing process. The Unified Code of Corrections makes extensive provision for the sentencing hearing. (Ill. Rev. Stat. 1975, ch. 38, par. 1005-4-1.) As a part of the procedure the court is required to "hear arguments as to sentencing alternatives." As a matter of logic, no question of financial ability could arise until this time. If the State recommends a fine only, as was done in this case, then and at the time when the defendant gets to speak, he may protest by reason of inability to pay or ask for time in which to pay on an installment plan. A burden rests on the defendant at this point to alert the court as to his situation; he may not stand idly by, accept the benefits of a fine-only sentence, and then complain that proper procedures were not followed.

This is not placing on the defendant the burden of proving his innocence; that matter has already been disposed of before the sentencing hearing is reached. It is only a burden of bringing to the court's attention matters which may influence the court's sentencing power.

Such a burden is recognized by the Unified Code of Corrections itself and by prior decisions of this court. Section 5-9-3(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1975, ch. 38, par. 1005-9-3(b)), having to do with default in payment, provides in part: "Unless the offender shows that his default was not due to his intentional refusal to pay, or not due to a failure on his part to make a good faith effort to pay, the court may order the offender imprisoned * * *." In People v. Harris (1976), 41 Ill. App.3d 690, 693, 354 N.E.2d 648, 650, this court said in construing section 5-9-3, "The burden is on defendant to exculpate his default. [Citation.]"

In the recent case of People v. Hanna (1977), 48 Ill. App.3d 6, 10, 362 N.E.2d 424, 428, this court reversed the trial court for failure to observe the three-day waiting period required by section 5-3-4 of the Unified Code of Corrections (Ill. Rev. Stat. 1975, ch. 38, par. 1005-3-4), but this court pointed out: "Defendant objected to the early setting, complaining that he needed more time to prepare for the hearing and to secure witnesses * * *. Defendant again complained of the timing of the hearing and the presentation of the presentence report." Had the defendant not objected, presumably the point would have been deemed waived.

• 3 Turning to the case at bar, the record shows an extensive argument on a motion in arrest of judgment. This motion was denied and the court then inquired:

"Would you like to proceed with anything else at this time?

Mr. Leiken [State's Attorney]: Yes sir, like to proceed with the ...


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