Appeal from the Circuit Court of Du Page County; the Hon. C.
Andrew Hayton, Judge, presiding.
JUSTICE SCHNAKE DELIVERED THE OPINION OF THE COURT:
The defendant, Salvatore Di Costanzo, was placed on concurrent one-year terms of probation for battery (Ill. Rev. Stat. 1983, ch. 38, par. 12-3(a)(1)) and criminal damage to property not exceeding $300 (Ill. Rev. Stat. 1983, ch. 38, par. 21-1(a)). One of the conditions of each sentence of probation was that he serve the final 60 days of the year in jail. Prior to the commencement of the period of incarceration, a hearing was held on the question of whether the jail sentence should be remitted. The court ordered the defendant to serve the 60 days in jail, and the defendant appeals, contending (1) that the remission hearing did not comport with constitutional requirements of due process of law, (2) that he did not receive effective assistance of counsel at the remission hearing, and (3) that if the order requiring him to serve the 60 days in jail is reversed, and the cause remanded for a new remission hearing, the hearing should be before a different judge.
When the defendant was placed on probation on April 5, 1983, his co-defendant, Carl Hendricks, received the same sentence. In the course of pronouncing sentence, the trial judge made the following remarks:
"So, what I'm going to do, Mr. Hendricks, you're not going to get supervision * * *.
So, you're going to be placed on probation for a period of one year, last 60 days in the DuPage County Jail. If you so much as get a speeding ticket, you're going to do those 60 days. If you get any serious offenses, they can still file a petition to revoke your probation. There'll be a fine of $500.00 and costs, $30.00 the restitution to the victim from you. That's it.
Mr. DiCostanzo, tough way to learn it, but you're going to get a conviction [instead of supervision]. One year's probation, last 60 days in the DuPage County Jail. I want to impress upon you that you have 60 days' jail time hanging over your head * * *.
Same terms for you [DiCostanzo], $500.00 fine."
After advising the defendant and Hendricks of their right to appeal, the judge addressed them as follows:
"Go over to the Probation Department as soon as you receive your paperwork. Please be careful because I'll put you in jail.
We'll give it a check date of February the 3rd to determine time and place of incarceration."
Following a recess the case was called again, and the following colloquy occurred:
"THE COURT: I'm not sure if I made the record clear. That was 60 days at the end. Did I say subject to motion to vacate?
MR. BELMONTE [counsel for the defendant and Hendricks]: No, you did not.
THE COURT: I intended it, just so you're aware of it. Prepare a motion to vacate for the date of incarceration. If they've not been in any trouble if I didn't intend it, I would have given it [the jail sentence] up front. I want the record reflect that's what I intended."
A handwritten order was filed, applicable to both the criminal damage to property and the battery cases, which reflected the sentences pronounced at the hearing. The order placed the ...