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People v. Reznick

OPINION FILED MARCH 10, 1986.

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

v.

JOHN C. REZNICK, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Fayette County; the Hon. William R. Todd, Judge, presiding. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:

The defendant, John C. Reznick, pleaded guilty to felony theft and was sentenced to probation. The State subsequently filed a motion to revoke probation. After a hearing, the court revoked probation, and on October 26, 1984, defendant was sentenced to five years' imprisonment. On November 1, 1984, the court entered an order which purported to extend the sentence by making it consecutive to the sentence in Fayette County cause No. 82-CF-40. On appeal, defendant contends that (1) the court improperly imposed consecutive sentences; (2) that the court improperly commingled the violations which led to a revocation of probation with the offense for which defendant was being sentenced when the court imposed sentence; and (3) that defendant was improperly denied certain credits for time served.

On October 26, 1984, defendant was sentenced upon revocation of probation and the court stated, in part:

"I'm going to sentence the defendant * * * to the penitentiary for a period of five years. The defendant will not be given any credit for time spent on probation. He will be given credit for time that was served; that will have to be computed and certified pursuant to statute made and provided * * *.

The court will enter judgment upon its previous findings that the defendant violated the terms and provisions of his probation, a judgment upon his finding that probation should be revoked and a judgment will be entered upon this sentence. The written judgment order will be prepared * * *."

On October 26, 1984, a "Mittimus for State Penal Institutions" along with the "Judgment and Sentence" was filed. The "Judgment and Sentence" stated, in part, "the court hereby sentences said defendant to imprisonment and fixes the term of imprisonment at five years with credit for time served in Fayette County Jail. No credit to be given for time deft. was on probation."

On October 30, 1984, a "Judgment" order was entered which recited the court's considerations and findings as well as the sentence. In paragraph 2, the word "concurrently" had originally been typed but was stricken out and "consecutively" typed above "concurrently." Thus amended, the "Judgment" recited the instant sentences were to be served consecutively to Fayette County case No. 82-CF-40.

On November 1, 1984, the court entered an order which stated in pertinent part:

"2. That there appears a scrivener's error in paragraph 2 of the order portion of this Court's Judgment filed October 30, 1984.

WHEREFORE, it is hereby ordered that this Court's Judgment of October 30, 1984 be amended instanter by interlineation so as to provide in the order portion of that Judgment as follows:

`2. The term of imprisonment ordered herein shall run consecutively to the term of imprisonment ordered by this Court in case number 82-CF-40 in Fayette County, Illinois.'"

• 1 Defendant contends that the order of November 1, 1984, improperly increased his sentence. The State contends that where the court, in pronouncing sentence, did not state whether the term was to run concurrently or consecutively with a previous term, the specification of this point in the written sentencing order did not constitute a change in the sentence.

A similar issue was raised in People v. Muellner (1979), 70 Ill. App.3d 671, 388 N.E.2d 851. In Muellner, following a hearing in aggravation and mitigation, defendant was sentenced to concurrent terms of four to eight years' imprisonment; however, 11 days after sentence was imposed, the trial court altered the sentence, upon the State's motion, so as to cause the sentences for rape to run consecutively to those imposed for deviate sexual assault. This court modified the sentences to be served concurrently and ruled that a trial court may, within 30 days of imposing sentence, reduce the sentence imposed but may not increase the sentence.

In People v. Hills (1980), 78 Ill.2d 500, 401 N.E.2d 523, defendant was sentenced after revocation of probation on July 28, 1977, and the court, at that time, made no mention of time served on probation (Ill. Rev. Stat. 1977, ch. 38, par. 1005-6-4(h)). On August 5, 1977, the circuit court convened another hearing in order to "make the record clear as it should be" and ordered that defendant be denied credit for the time spent on probation. The supreme court ruled that section 5-8-1 of the Unified Code of Corrections expressly proscribed an increase in sentence after it was imposed.

In the case at bar, the written order stating that the sentence was to be concurrent was not a mere scrivener's error, as the court did not state at the sentencing hearing that the sentences were to be served consecutively to the previously imposed official misconduct sentence. The omission at the sentencing hearing to state that the sentence was to be served consecutively is analogous to the omission in Hills that the defendant was denied credit for time served on probation. We find that the November 1, 1984, order impermissibly increased defendant's ...


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