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People v. Harris

OPINION FILED JANUARY 23, 1985.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,

v.

DAVID HARRIS, APPELLANT. — THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,

v.

RAYMOND COLEMAN, APPELLEE.



No. 59630 — Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Earl E. Strayhorn, Judge, presiding.

No. 59660 — Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Lake County, the Hon. Jack Hoogasian, Judge, presiding.

JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:

Neil F. Hartigan, Attorney General, of Springfield, and Fred Foreman, State's Attorney, of Waukegan (Mark L. Rotert and James E. Fitzgerald, Assistant Attorneys General, of Chicago, and Phyllis J. Perko and Martin P. Moltz, of the State's Attorneys Appellate Service Commission, of Elgin, of counsel), for the People.

G. Joseph Weller, Deputy Defender, and John R. Wimmer and Jan K. Dargel, Assistant Defenders, of the Office of the State Appellate Defender, of Elgin, for appellee.

In cause No. 59630, defendant, David Harris, was convicted of burglary in the circuit court of Cook County following a bench trial. Defendant waived a presentence investigation report, and the court proceeded to a sentencing hearing. During this hearing, the judge gave defendant the option of being sentenced to either a minimum term of imprisonment, or a three-year term of probation. The court warned the defendant, however, that if he violated the terms and conditions of his probation he would be sentenced to prison for five years. Despite this caveat, defendant opted to be sentenced to a three-year term of probation.

A petition for violation of probation and application for warrant was subsequently filed by the State against him. A hearing on the petition was conducted before the same judge who had sentenced him on the original burglary conviction. During this hearing, defendant's probation officer informed the court that while defendant was on probation he had been sentenced to a two-year term of imprisonment for possession of a stolen motor vehicle. Defendant admitted this conviction and indicated that he would not require the State to prove the conviction on a more formal basis. Based on the defendant's admission, the court found that he had violated the terms of his probation and sentenced him to a five-year term of imprisonment pursuant to its earlier warning. Although defendant was given credit for the time he had spent on probation prior to the State filing its petition to revoke, the court denied defendant credit for time spent in custody prior to his initial burglary conviction. The court also stated that the five-year sentence imposed upon the burglary would run concurrently with the two-year sentence defendant received for possession of a stolen motor vehicle.

On appeal, the appellate court found that defendant was entitled to credit for time spent in custody and remanded the cause for correction of the mittimus. In all other respects, however, the judgment of the circuit court was affirmed. (87 Ill.2d R. 23; 119 Ill. App.3d 1162.) Specifically, the court held that the sentencing judge's failure to order a presentence investigation report, prior to imposing sentence upon revocation of defendant's probation, did not constitute error where the defendant voluntarily waived his right to a presentence report when originally placed on probation. Pursuant to our Rule 315(a) (87 Ill.2d R. 315(a)), we granted defendant's petition for leave to appeal.

In cause No. 59660, defendant, Raymond Coleman, was charged by information in Lake County with the offense of burglary. The defendant pleaded guilty and, pursuant to a plea negotiation, was sentenced to 24 months' probation. Both parties waived a presentence investigation report.

Sometime thereafter the State filed a two-count petition to revoke probation which alleged that defendant had committed two separate burglaries while on probation. At the hearing on this petition, the defendant stipulated to the probation violation alleged in the first count, which was the burglary of the Sub Venture Restaurant located in North Chicago. In return for that stipulation, the State withdrew the remaining count. Based on the defendant's admission, the court found that he was in violation of his probation. At this time, defense counsel, apparently forgetting that the presentence investigation report had been initially waived, requested that an "update" report be ordered. The State also joined in this request, which was granted by the court.

At the subsequent sentencing hearing, a five-page "updated" presentence report was filed by the probation department. The report detailed the defendant's conduct, health, and residence while on probation and included a section on resources available in the community to aid in rehabilitation. The "updated" report also described the impact of the probation violation on the Sub Venture Restaurant. However, the report did not contain any information concerning defendant's background prior to the time he was placed on probation. Nor did it describe the impact of the original burglary on defendant's victim.

Before imposing sentence, the court inquired as to the accuracy of the information contained in the updated presentence report. The defendant responded that the report was accurate. Further, both the State and defense counsel stated that there were no additions or corrections to be made to the updated report. In pronouncing sentence the court mistakenly stated that it had examined both "the presentence investigation report and the up-dated presentence report." Defendant was then sentenced to a four-year term of imprisonment, without credit for time served on probation, but with credit for time served in custody.

The appellate court reversed the judgment of the circuit court and remanded for resentencing. (People v. Coleman (1983), 120 Ill. App.3d 619.) It held "that the trial court's failure to consider a presentence report and its consideration only of an `update' of a presentence report was plain error." (120 Ill. App.3d 619, 625.) We granted the State's petition for leave to appeal and consolidated both causes.

These consolidated cases present a common question: whether, after revocation of probation, a trial court must consider a presentence investigation report before sentencing a defendant on a felony conviction. Additionally, defendant Harris raises two issues: (1) whether the trial judge abused his discretion in sentencing defendant to five years; and (2) whether ...


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