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People v. Shook

OPINION FILED JUNE 30, 1980.

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

v.

HELEN DUGGE SHOOK, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Madison County; the Hon. HORACE L. CALVO, Judge, presiding.

MME JUSTICE SPOMER DELIVERED THE OPINION OF THE COURT:

Mme JUSTICE SPOMER delivered the opinion of the court:

The defendant, Helen Dugge Shook, was charged by information with the offense of felony theft by deception. After a bench trial, she was found guilty. She was sentenced to two years' probation, with the conditions that she receive psychological counseling, seek treatment for alcoholism, seek and maintain employment, make restitution, pay costs, and serve the last 60 days of the probation term in the county jail subject to the court's review. Defendant appeals from the condition that she serve the 60-day jail term.

The evidence presented at trial reveals that the defendant reported that she had failed to receive her public aid check in May 1978. The same day she made her report, her check was cashed. A few days later, a replacement check was issued, which defendant cashed. Subsequently, the defendant executed an affidavit of forgery, stating the signature on the first check was not hers. Later a document examiner reported that the questioned signature on the first check was written by the defendant. She was arrested and convicted of felony theft by deception.

At the trial, defendant testified that at the time of the offense she was suffering from severe nervous problems and a drinking problem. In April 1978, just before the offense occurred, defendant was hospitalized for treatment of drug and alcohol abuse. She continued treatment after her release. During June 1978, defendant's drug and alcohol abuse became so severe that she was unable to care for her daughter, so the daughter was removed from her home. In July 1978, defendant was married, which apparently helped her to gain some stability. On August 22, 1978, the daughter was returned to defendant under an "Order for Continuance Under Supervision" in Jersey County.

At the sentencing hearing on March 14, 1979, no evidence was presented in aggravation or mitigation. The court noted defendant's drinking problems and the treatment she had received, and that defendant's problems were being alleviated. After the judge then imposed a two-year period of probation, the following colloquy occurred between the judge and defendant's attorney:

"THE COURT: * * It will be a further provision that you spend sixty days in the Madison County Jail at the end of your probationary period, and that will be subject to review by the Court.

MR. FISCHER: Your Honor, may I ask one question? The sixty-day term in the Madison County Jail at the end of the two years subject to —

THE COURT: — the Court's review.

MR. FISCHER: — the Court's review. It is my understanding that that could be vacated upon a very satisfactory compliance with the —

THE COURT: Yes. What generally happens on those is that when the sixty-day time comes up, the probation officer will file a petition for the Court to waive that provision on the basis that the defendant has complied with the conditions of probation and has satisfactorily completed probation or is in the process of so doing. And the Court then customarily would waive the sixty-day time at that time."

On appeal defendant contends that the sentence of imprisonment to be served during the last 60 days of a two-year probation period "subject to review by the Court" is both excessive and improper. She argues that the trial court lacked jurisdiction to modify the sentence after the expiration of 30 days from date of its imposition.

The State counters that the 60-day sentence is nothing more than periodic imprisonment *fn1 and in fact, at oral argument, conceded that the jail term — if justifiable — must be justified as such. It contends that if the sentence is construed as periodic imprisonment, it is a proper condition of probation (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005-6-3(b)(1), which can be modified at any time (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005-6-4(f)). Further, that as periodic imprisonment, the trial judge has the power to modify or revoke it throughout its duration (Ill. Rev. Stat., 1977 Supp., ch. 38, par. 1005-7-2). We find no quarrel with the proposition that if a sentence can be construed as periodic imprisonment, the trial court, under section 5-7-2 of the Unified Code of Corrections, has the power to modify it throughout the period of imprisonment. However, if it is not periodic imprisonment, the court's power to reduce or modify it is limited to the period within 30 days after sentence is imposed (Ill. Rev. Stat., 1977 Supp., ch. 38, par. 1005-8-1(c)).

• 1 We believe the 60-day term imposed in the case at bar was neither intended as periodic imprisonment nor logically can be construed as such. The trial court sentenced defendant to a specific 60-day term in the county jail, which it did not designate as periodic imprisonment. Nor does the record disclose any intention of the judge that this term would be served periodically, either for any of the reasons set forth in the statute — permitting defendant to seek employment, work, conduct a business, attend to family needs, attend an educational institution, obtain medical or psychological treatment — or for any other purpose.

The cases cited by the State are distinguishable on their facts, and all are clearly cases of periodic imprisonment. In People v. Hajostek (1977), 49 Ill. App.3d 148, 363 N.E.2d 1208, in imposing the maximum allowable term of probation, conditioned on service of four months' imprisonment with the following eight months' imprisonment on weekends only, the court stated, page 50:

"In our view the total imprisonment, during the first year, upon which defendant's probation is conditioned, is a sentence of periodic imprisonment. The trial court clearly has the authority to order the particular times of release under a sentence of periodic imprisonment. In the instant case the ordered times of release commence after a period of four months and continue for the remainder of the year ...


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