Appeal from the Appellate Court for the Third District; heard
in that court on appeal from the Circuit Court of Carroll County,
the Hon. F. Lawrence Lenz, Judge, presiding.
JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 26, 1986.
In a three-count information filed in the circuit court of Carroll County, defendant, Gary L. Crete, was charged with aggravated battery, resisting a peace officer, and criminal damage to property (Ill. Rev. Stat. 1983, ch. 38, pars. 12-4(b)(6), 31-1, 21-1(a)). Following a jury trial defendant was convicted and sentenced to 10 years' imprisonment for aggravated battery and 360 days for resisting a peace officer. He was found not guilty of criminal damage to property. The appellate court affirmed (133 Ill. App.3d 24), and we allowed defendant's petition for leave to appeal (103 Ill.2d R. 315(a)). The facts are adequately set forth in the opinion of the appellate court and will be restated here only to the extent necessary to discuss the issues.
On August 9, 1983, eight days after defendant was sentenced, his counsel filed a motion to vacate or modify sentence, and alternatively for a new trial. (Ill. Rev. Stat. 1983, ch. 38, pars. 1005-8-1(c), 116-1.) Subsequently, counsel filed an amended motion to vacate or modify the sentence, and alternatively, for a new trial, and defendant, pro se, filed a motion to disqualify the trial judge. The motions were set for hearing on November 30, 1983. The People moved to dismiss or deny the motions. The circuit court found that the motion to disqualify the trial judge and the alternative motion for new trial were not timely filed. Concerning the motion to reconsider the sentence, the court found that, although the motion was filed within 30 days of sentencing, an order reducing or modifying a sentence under the provisions of section 5-8-1(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38, par. 1005-8-1(c)) must also be entered within that time. Section 5-8-1(c) provides:
"(c) The trial court may reduce or modify a sentence, but shall not increase the length thereof by order entered not later than 30 days from the date that sentence was imposed. This shall not enlarge the jurisdiction of the court for any other purpose."
In affirming, the appellate court relied on a literal interpretation of section 5-8-1(c) and concluded that its clear and explicit language required that an order reducing or modifying a sentence be entered within 30 days of imposition of sentence. 133 Ill. App.3d 24, 32-33.
Defendant contends that the sentence should be vacated and the cause remanded for a hearing on his timely filed motion to reconsider. Citing People v. Bodine (1981), 97 Ill. App.3d 42, People v. Shook (1980), 86 Ill. App.3d 174, and People v. Cornett (1975), 29 Ill. App.3d 244, he argues that the appellate and circuit courts erred in holding that the timely filing of his motion to reconsider was not sufficient, and that the order disposing of the motion must be entered within 30 days of the sentencing. Defendant argues alternatively that, should this court agree with the lower courts, the decision should be applied prospectively. He asserts that because he had relied on prior judicial opinions which held that the order need not be entered within 30 days from the sentencing date, retroactive application would be unconscionable. (People v. Patton (1974), 57 Ill.2d 43.) Defendant argues, too, that the maximum extended-term sentence of 10 years' imprisonment imposed by the circuit court must be reduced because it is disproportionate to the nature of the offense of aggravated battery.
We consider first defendant's contention that because his motion to reconsider the sentence pursuant to section 5-8-1(c) was filed within 30 days of sentencing, the circuit court retained jurisdiction to rule on the motion subsequent to the expiration of the 30-day period.
Although prior appeals to this court have involved section 5-8-1(c) (formerly section 5-8-1(d)), we have not previously considered the precise issue presented here. In People ex rel. Carey v. Rosin (1979), 75 Ill.2d 151, the court held that the stay of execution of a sentence did not toll the running of the 30-day period within which the trial court may modify the sentence. The opinion, however, indicates that the motion for reconsideration was filed more than 30 days after the imposition of sentence. In People v. Hills (1980), 78 Ill.2d 500, the issue presented was not the reduction or modification of the sentence, but a change which effectively increased it.
The opinions of the appellate court (People v. Hickey (1985), 138 Ill. App.3d 749; People v. Bodine (1981), 97 Ill. App.3d 42; People v. Shook (1980), 86 Ill. App.3d 174; People v. Hamilton (1979), 78 Ill. App.3d 1031; People v. Knowles (1979), 76 Ill. App.3d 1004; People v. Muellner (1979), 70 Ill. App.3d 671; People v. Cornett (1975), 29 Ill. App.3d 244) are not in agreement on the question. We perceive no benefit to be derived from a detailed discussion of the opinions, and it suffices to say that they range from the literal interpretation applied in this case to the unqualified statement that filing of the motion tolled the running of the statute until a ruling was made on the motion. (People v. Hickey (1985), 138 Ill. App.3d 749.) The council commentary pertaining to section 5-8-1(d) (now subparagraph (c)) that "[s]ubparagraph (d) provides that the court may reduce the length of sentence any time within 30 days after the sentence is imposed" (Ill. Ann. Stat., ch. 38, par. 1005-8-1(d), Council Commentary, at 25 (Smith-Hurd 1973)) would appear to support the appellate court judgment here.
We have compared the provisions of section 5-8-1(c) with Rule 35(b) of the Federal Rules of Criminal Procedure (Fed. R. Crim. P. 35(b)), which, in pertinent part, provided:
"A motion to reduce a sentence may be made, or the court may reduce a sentence without motion, within 120 days after the sentence is imposed * * *."
Rule 35, as limited by the provisions of Federal Rule of Criminal Procedure 45, has not been uniformly construed by the Federal circuits. In United States v. Stollings (4th Cir. 1975), 516 F.2d 1287, it was held that the district court did not lose jurisdiction to act upon a motion for reduction of sentence filed within the 120-day period for so long as the judge reasonably needed time to consider and act upon the motion. In United States v. Kajevic (7th Cir. 1983), 711 F.2d 767, the court reviewed the decisions of the other circuits and noted that in United States v. Braasch (7th Cir. 1976), 542 F.2d 442, the court had "treated the 120-day limitation as a limitation on the time for filing the motion rather than on the time for acting on it." (711 F.2d 767, 769.) The court decided Kajevic on another ground but pointed out that the literal application of Rule 35(b) would, contrary to Braasch, prohibit a district judge from acting on the motion subsequent to the expiration of 120 days after the imposition of sentence. We note that in 1985 Rule 35 was amended to substantially conform with the holding of United States v. Stollings. Fed. R. Crim. P. 35.
We have considered the questions whether section 5-8-1(c) may be construed as permissive rather than mandatory, and whether, if mandatory, it violates the constitutional provision for separation of powers. In People v. Flores (1984), 104 Ill.2d 40, the court was required to construe section 115-4.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1983, ch. 38, par. 115-4.1) which, in pertinent part, provided that when, in a criminal trial, a defendant wilfully absents himself from court for a period of ...