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People v. Nelson

OPINION FILED JUNE 2, 1980.

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

v.

DARRYL NELSON, A/K/A SYLVESTER LEE, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of McLean County; the Hon. WAYNE C. TOWNLEY, JR., Judge, presiding.

MR. JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

On December 29, 1975, defendant was placed on probation for a term of 3 years following his plea of guilty to theft. (Ill. Rev. Stat. 1973, ch. 38, par. 16-1.) A condition of the probation was that defendant make restitution of a stated amount and pay costs.

On August 4, 1978, a petition to revoke probation alleged (1) that defendant failed to make any restitution or payment of costs, and (2) that defendant had been convicted of aggravated battery in another county. After admonitions by the court, the allegations of the petition were admitted by defendant and appropriate record of the subsequent conviction was placed in evidence.

The order appealed provides:

"IT IS HEREBY ORDERED that the Defendant is in contempt of Court and he is hereby sentenced to six months imprisonment in the McLean County Jail with credit for time spent in custody * * *.

IT IS FURTHER ORDERED that the term of the Defendant's probation be extended to December 28, 1980, and that all restitution and Court costs be paid prior to September 1, 1980."

The order further provided that defendant be released on personal recognizance and computed an amount to be credited to restitution and costs from defendant's cash bond.

Upon appeal, defendant prays that the order of the trial court be reversed in part, and that this court vacate that portion of the order which extends probation for a term of 2 years and requires further restitution. He argues that he has served a jail sentence (much reduced by credit for time served) upon a finding of general contempt and that the provision of the order for the extension of probation and completion of restitution brings about multiple punishments for the same offenses in violation of North Carolina v. Pearce (1969), 395 U.S. 711, 23 L.Ed.2d 656, 89 S.Ct. 2072, and People v. Gray (1977), 69 Ill.2d 44, 370 N.E. 797. We do not agree with the conclusion argued by defendant in interpreting the order of the trial court.

Section 5-6-4(d) of the Unified Code of Corrections (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005-6-4(d)) provides:

"Probation * * * shall not be revoked for failure to comply with conditions of a sentence * * * which imposes financial obligations upon the offender unless such failure is due to his wilful refusal to pay."

The petition to revoke probation does not allege a wilful refusal to pay restitution and costs, and the record contains no evidence which would establish wilful refusal. The record does show statements of defendant's counsel that he was unable to pay, but there is no testimony to that effect.

Section 5-6-3 of the Unified Code of Corrections (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005-6-3) sets forth conditions of probation which may be imposed by the trial court, including:

"(9) make restitution in an amount not to exceed * * *. Where the conditions of payment have not been satisfied, the court, at any time prior to the expiration or termination of the period of probation, * * * may impose an additional period not to exceed 2 years, during which the conditions of payment alone shall remain in force." (Emphasis added.)

• 1 In the light of such provision and the structure of the trial court's order, it cannot be said that the court imposed the sentence for contempt ...


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