APPEAL from the Circuit Court of Rock Island County; the Hon.
JOSEPH CARPENTIER, Judge, presiding.
MR. PRESIDING JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
Defendant Larry Miles appeals from a probation revocation in the Circuit Court of Rock Island County as a result of which he was resentenced to a term of from 3 to 9 years in the penitentiary, which term was to be served concurrently to a 3- to 9-year sentence for another offense which was imposed at a sentencing hearing held jointly with the probation revocation sentencing hearing. (Defendant Miles was convicted of theft in a case previously appealed and affirmed by this court (People v. Miles (3d Dist. 1977), 45 Ill. App.3d 758, 360 N.E.2d 165)).
On appeal now from the probation revocation proceeding, defendant contends that he was denied credit on his probation term for time spent in custody prior to his conviction, in the same manner as credit is allowed on periods of imprisonment, and was, therefore, denied equal protection of the laws. He asserts that if such credit had been allowed as against his probation term at the time it was imposed, the term would have expired prior to the filing of the petition to revoke his probation. He also contends that even if his probation was correctly revoked, it was error for the trial court to deny defendant credit as against his sentence both for the time served on probation for that conviction and for the time spent in custody prior to the conviction. The State concedes that the defendant was entitled to credit for the time spent on probation as well as for the time spent in custody prior to being placed on probation as against the sentence imposed on him upon revocation of his probation. See People v. Bowling (3d Dist. 1976), 43 Ill. App.3d 932, 357 N.E.2d 724.
It appears from the record that defendant Miles was charged with burglary on October 29, 1972, and pleaded guilty to the offense and was released on his own recognizance on December 21, 1972. He had spent 53 days in custody between his arrest and his release. On February 24, 1973, the court placed defendant on 3 years' probation.
Thereafter, on October 20, 1975, Miles was charged by information with a theft. He was convicted by a jury of the felony theft charge and on January 16, 1976, as a result of the theft conviction, a petition was filed to revoke defendant's probation resulting from the 1972 burglary conviction. A revocation hearing was held on February 3, 1976.
At the probation revocation hearing, defendant's attorney challenged the petition for revocation and contended that the 53 days of preconviction custody time served as a result of the burglary charge should have been credited as against his 3-year probation sentence. He asserts that if such sentence had been credited toward his probation sentence, then the petition to revoke would not have been timely, for the probation period would have ended prior to the filing of the petition on January 16, 1976. His basis for his contention was that defendant was denied equal protection of the laws under the Federal and State of Illinois constitutions.
The trial court rejected this contention and revoked defendant's probation. At a joint sentencing hearing on the theft conviction and probation revocation, Miles was sentenced to the penitentiary for terms of 3 to 9 years, to run concurrently.
• 1 The State initially asserts that defendant cannot claim error in this appeal as to the probation sentence since no appeal was taken from the 1973 sentence of probation upon which the 1976 probation revocation hearing proceeded. Obviously, in an appeal from a probation revocation order, one cannot obtain a review of errors arising in the original judgment of conviction from which no appeal was taken (People v. Lambert (3d Dist. 1974), 23 Ill. App.3d 615, 320 N.E.2d 395). The review on appeal of probation revocations is restricted to the issues arising in the revocation proceeding. (People v. Yackle (5th Dist. 1976), 42 Ill. App.3d 695, 356 N.E.2d 664.) In the present case, however, the assignment of error which is the issue on review concerns the jurisdiction of the court to hear the probation revocation petition. The defense argument presented at the revocation hearing was to the effect that the Federal and Illinois constitutions both required that defendant be given credit as against his probation sentence for the time spent in custody prior to his 1973 burglary conviction. Counsel argued that, accordingly, if that was true, the court had no jurisdiction over defendant since probation should have ended prior to the filing of the petition to revoke. The contention is that the probation court's decision on the equal protection argument and its revocation of probation in that action is the subject of review at this time. No errors arising from the original judgment of guilt is requested, but review is requested as to the issue raised at the probation revocation proceeding on the equal protection argument as to jurisdiction of the court at such probation revocation hearing. No attack is made as to the underlying burglary conviction or upon the probation sentence imposed as a result of the burglary conviction. The question is solely a matter of the credit for custody time and its applicability to jurisdiction of the probation hearing.
• 2, 3 In determining whether the equal protection of the law requires that credit be given for preconviction custody time, when the ultimate sentence imposed is one of probation rather than imprisonment, requires that we give consideration to the Illinois statute (Ill. Rev. Stat. 1975, ch. 38, par. 1005-8-7(b)) providing that persons sentenced to a term of imprisonment "shall be given credit on the maximum term and the minimum period of imprisonment for time spent in custody as a result of the offense for which the sentence was imposed." This statute has been construed to require that credit for preconviction custody time be given when a sentence of imprisonment is made after the revocation of probation. People v. Hudson (1st Dist. 1975), 34 Ill. App.3d 94, 339 N.E.2d 482; People v. Fleming (2d Dist. 1974), 23 Ill. App.3d 221, 318 N.E.2d 518.
The argument of defense is that denying similar credit as against sentences of probation denies to persons placed on probation equal protection of the laws. There is no comparable statute granting credit to persons sentenced to probation rather than imprisonment. It might be stated that defendant asks that the courts> create such a statute by implication. A statutory provision for credit as against imprisonment only is not unique to Illinois. It appears in many States and Federal legislation application to Federal convictions. The particular issue raised in the instant case, however, has not apparently been raised or considered in any other cases which we have discovered or which have been directed to our attention.
• 4 The equal protection guarantees in both the Federal and Illinois constitutions require that State regulations and legislation accord similar treatment to persons similarly situated. (U.S. Constitution, amend. XIV; Illinois Const. art. 1, § 2; Duncan v. State of Missouri (1894), 152 U.S. 377, 38 L.Ed. 485, 14 S.Ct. 570; Marallis v. City of Chicago (1932), 349 Ill. 422, 182 N.E. 394.) There is, however, no automatic violation of one's equal protection rights which arises simply because a particular statutory classification is not accurate, scientific or harmonious, or because the statute treats one class of individuals differently from another class, provided that it affects all members of the same class alike. (Panko v. County of Cook (1st Dist. 1976), 42 Ill. App.3d 912, 356 N.E.2d 859.) The courts> recognize the existence of broad latitude and discretion in the field of legislative classification. People v. McCabe (1971), 49 Ill.2d 338, 275 N.E.2d 407.
If a fundamental right or a suspect classification is not involved, then the proper test to be applied, in viewing the alleged discriminatory statutory classification, is what is described as the "rational relationship" standard. Under this test, the court must assume the validity of the legislative classification, and the persons challenging such classification have the burden of rebutting this presumed validity (49 Ill.2d 338, 340-41; People v. Grammer (1976) 62 Ill.2d 393, 342 N.E.2d 371). If any state of facts can be reasonably conceived to justify the classification, it will be upheld. (People v. McCabe (1971), 49 Ill.2d 338, 341, 275 N.E.2d 407; Hoskins v. Walker (1974), 57 Ill.2d 503, 509, 315 N.E.2d 25.) The court does have an obligation within this review scheme to insure that the power to classify has not been exercised arbitrarily. People v. Sherman (1974), 57 Ill.2d 1, 309 N.E.2d 562.
Under the rational relationship analysis, once a discriminatory classification is shown, the court must then (1) look to the purposes behind the legislative scheme at issue, and (2) determine whether the classification bears a rational relationship to a legitimate legislative purpose (Panko v. County of Cook (1st Dist. 1976), 42 Ill. App.3d 912, 356 N.E.2d 859).
In the instant case, we should first correctly identify the class of persons which the alleged discriminatory classification affects before we proceed to an examination of the purposes and function of probation and imprisonment. The defendant argues that the class of persons similarly situated in this case involves those persons "being in custody for the same amount of time prior to sentencing." Defense finds discrimination within this class, in that some such persons are given credit as against their ...