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People v. Scheib

OPINION FILED MAY 24, 1979.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,

v.

LARUE SCHEIB, APPELLANT. — THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,

v.

RONALD FERGUSON, APPELLANT.



No. 50865. — Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Sangamon County, the Hon. Harvey Beam, Judge, presiding.

No. 51021. — Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of Will County, the Hon. Thomas P. Faulkner, Judge, presiding.

MR. JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:

Robert Agostinelli, Deputy Defender, and Michael J. Pelletier, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Ottawa, for appellant.

William J. Scott, Attorney General, of Chicago, C. Joseph Cavanagh, State's Attorney, of Springfield, and Edward Petka, State's Attorney, of Joliet (Donald B. Mackay and Melbourne Noel, Assistant Attorneys General, of Chicago, and Robert C. Perry and Jane F. Bularzik, of the State's Attorneys Appellate Service Commission, of Springfield, of counsel), for the People.

Each of these two cases, which we have consolidated for review in this court, involves the application of credit for time served prior to each defendant's revocation proceeding.

In cause No. 50865, defendant, Larue Scheib, pleaded guilty to burglary and was sentenced by the circuit court of Sangamon County to two years' probation. The conditions of Scheib's probation included a $200 fine and separate jail sentences of six weekends and 20 days in jail. The trial court gave Scheib credit for 20 days which he had already served prior to trial. Approximately four months later, Scheib's probation was revoked pursuant to a trial court's finding that he had violated his probation by committing arson. The trial court sentenced Scheib on the burglary offense to a prison term of two to six years. The court allowed him credit for 82 days which he had served in jail during the pendency of the probation-revocation and sentencing hearings but refused to credit him for the time served on probation, for the weekends served in the county jail, or for the 20 days of incarceration which had preceded the original trial on the burglary offense.

The Appellate Court for the Fourth District held that Scheib was entitled to credit for the weekends of periodic imprisonment served as a condition of probation but was not entitled to credit for the 20 days he had served prior to the original trial. The court also held that, because periodic imprisonment is to be calculated on the basis of the duration of the term of sentence, Scheib was to be granted credit of one full week for each weekend actually served in jail. (59 Ill. App.3d 104.) In response to the court's denial of rehearing, one judge indicated that he would grant credit for the 20 days served in custody. We allowed Scheib leave to appeal.

In cause No. 51021, defendant, Ronald Ferguson, was convicted of criminal damage to property, a misdemeanor, and was sentenced by the circuit court of Will County to a conditional discharge for a period of two years. Ferguson's discharge was conditioned, in part, upon his serving 120 days in jail. The trial court gave Ferguson credit for 60 days which he had already served prior to trial and suspended the remaining 60-day term. Less than a month later, Ferguson's conditional discharge was revoked pursuant to a trial court's finding that he had violated the terms of his conditional discharge by committing robbery. He was sentenced on the misdemeanor offense to a term of 264 days in the Vandalia Correctional Center. The court allowed him credit for 14 days which he had spent on conditional discharge but failed to credit him for the 60 days he had served in custody prior to the original trial.

The Appellate Court for the Third District held that, because Ferguson had already received credit for the 60 days of preconviction incarceration, he was not entitled to credit upon resentencing after revocation of his conditional discharge. (60 Ill. App.3d 422.) We allowed Ferguson leave to appeal.

The predominant question common to both cases is whether time spent in confinement for a particular offense must be credited to a defendant upon resentencing after revocation of probation or conditional discharge. Two potentially conflicting provisions of chapter V of the Unified Code of Corrections (Ill. Rev. Stat. 1975, ch. 38, par. 1005-1-1 et seq.) are involved. Section 5-6-4(h) of the Code, which section applies to the sentences here involved, provides in pertinent part:

"Time served on probation or conditional discharge shall be credited by the court against a sentence of imprisonment or periodic imprisonment unless the court orders otherwise." (Emphasis added.) (Ill. Rev. Stat. 1975, ch. 38, par. 1005-6-4(h).)

This section, applicable generally upon resentencing after revocation proceedings, authorizes the trial court to use its discretion in determining if credit is warranted. On its face, the section might be construed to apply both to time spent unconfined on probation (or conditional discharge) and to time which, though spent in ...


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