Appeal from the Circuit Court of Vermilion County; the Hon.
James K. Robinson, Judge, presiding.
JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:
Defendant Donald Redman pleaded guilty to possession of more than 30 but less than 500 grams of cannabis (Ill. Rev. Stat. 1981, ch. 56 1/2, par. 704(d)) and was sentenced to 30 months' probation. A petition to revoke his probation was filed alleging that defendant failed to report to his probation officer as required by the terms of his probation. The violation was proved and defendant was sentenced to three years' imprisonment. Defendant appeals from the judgment of the circuit court of Vermilion County. We remand the cause to the trial court for the issuance of an amended mittimus.
The single issue raised by defendant is whether he is entitled to additional credit toward his sentence of imprisonment.
On January 22, 1982, defendant pleaded guilty pursuant to a plea agreement to the offense of unlawful possession of more than 30 but less than 500 grams of a substance containing cannabis. In exchange for the guilty plea, the court agreed to sentence defendant to probation with a maximum of 60 days in jail. Judge Robinson conducted the sentencing hearing on March 11, 1982.
The presentence report prepared by probation officer Phyllis Nelson showed several prior offenses. In 1976, defendant was found guilty and fined for a shoplifting offense which occurred in 1975. In 1981, defendant pleaded guilty to one count of criminal trespass to a motor vehicle and one count of an offense relating to a motor vehicle. Defendant was placed on one year's probation on May 11, 1981.
Defendant's probation officer in the 1981 case (81-CM-253) informed Nelson by letter that defendant had never reported monthly to the probation office as required by the conditions of his probation, and had failed to make any effort to pay the $435 fine, court costs and restitution ordered in that cause. Nelson testified that she spoke to defendant about this on February 8, 1982. She said defendant told her that he had somewhere to go that day, but would start reporting in later on. As of the date of hearing, to her knowledge, he had not reported.
The State suggested a sentence of 30 months' probation with 60 days' jail time and $30 restitution. The incarceration recommendation was based partially upon defendant's poor attitude toward probation. Defendant's counsel argued that no incarceration should be imposed.
Judge Robinson sentenced the defendant to 30 months' probation, made the requisite findings for imposition of a consecutive sentence under section 5-8-4(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005-8-4(b)), and announced the express terms and conditions of defendant's probation, including 60 days' imprisonment, restitution of $30 and costs of suit. Judge Robinson further stated:
"I think maybe you need a little help at this time with probation, and I'll give you that help. The first time you miss your Court-directed appearance at Court Services, your report, the first time you fail to show up, they're instructed to file a violation petition. And upon prove-up of that violation without sufficient cause, I'll send you off for three years. I'm telling you in advance what that sentence is going to be. If that does not provide the impetus to secure prompt reporting, then we'll just have to do away with reporting and try the penitentiary."
The court advised the defendant that if he obtained his G.E.D. certificate in less than the 60 days' of his incarceration, he would release defendant from further confinement. The trial judge then entered judgment and admonished the defendant as to his rights to appeal. Upon concluding the admonishments, Judge Robinson stated:
"Excuse me just a moment. The sentence in this case will run consecutively with the sentence previously imposed for the criminal damage. * * * He's in custody on a 60-day mittimus. Mittimus to issue." (Emphasis added.)
Neither the probation order, dated March 11, 1982, but filed March 25, 1982, nor the docket sheet state that defendant's probation in this cause was to be consecutive to the probation in No. 81-CM-253. The probation order stated that defendant was sentenced to a term of probation: "For a period of 30 months from and after this date," the 30 months being typed into a blank on the form. Nothing had transpired, insofar as the record shows, in the interim between the trial judge's pronouncement of sentence and the signing of the order which might have effected a change in the court's view as to the proper sentence in this cause.
On April 1, 1982, Judge Robinson ordered defendant's release from the county jail and his continuation on probation.
On June 16, 1983, the State filed the petition to revoke probation alleging defendant's failure to report to his probation officer. A hearing was conducted on the petition on September 13, 1983. The court found the State had proved the violation. Probation officer Nelson testified that when she spoke to defendant on February 8, 1982, he was attending school. On that basis, they had agreed that he would report monthly rather than weekly. Nelson testified that defendant had expressed a desire to be employed in another State and that she had informed him that before he could leave the State he would have to have a job lined up. Defendant testified that he had found a job as a concrete finisher in Fort Lauderdale, Florida. He had left the State of Illinois and gone to Fort Lauderdale to seek employment. He had ...