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03/31/87 the People of the State of v. Harlis D. Atteberry

March 31, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

HARLIS D. ATTEBERRY, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

506 N.E.2d 705, 153 Ill. App. 3d 10, 106 Ill. Dec. 905 1987.IL.398

Appeal from the Circuit Court of Jefferson County; the Hon. Lehman D. Krause, Judge, presiding.

APPELLATE Judges:

Justice Welch delivered the opinion of the court. Karns, P.J., and Harrison, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WELCH

The defendant, Harlis D. Atteberry, pleaded guilty to burglary and was sentenced to probation. As incidents of that probation, defendant was ordered to pay a $500 fine, $800 restitution, and a $20 fine to the Violent Crime Victims Assistance Fund. His probation was revoked, and he was sentenced to four years' imprisonment "with credit for time served in the Jefferson County Jail from December 4, 1985 to March 17, 1986." On appeal, defendant contends that he is entitled to additional credit for time served in jail against his penal sentence and that he is entitled to certain credits against his fine.

The record establishes that the arrest warrant was served on defendant on June 5, 1984, and he posted bond on June 7, 1984. Defendant, therefore, contends that he is entitled to an additional three days' credit against his sentence of imprisonment. The State concedes that defendant is entitled to an additional three days' credit. This court agrees with the parties' contention. Defendant is entitled to an additional three days' credit against his sentence of imprisonment. See People v. Johns (1984), 130 Ill. App. 3d 548, 549, 474 N.E.2d 739, 740; People v. Scheib (1979), 76 Ill. 2d 244, 250, 390 N.E.2d 872, 875.

Defendant next contends that he is entitled to reimbursement of his $500 fine due to his incarceration from December 4, 1985, through March 17, 1986. On December 4, 1985, the State filed a petition to revoke defendant's probation. On December 6, 1985, the State filed a "Notice of Petition to Revoke Probation" accompanied by a certificate of service that the "Notice" had been mailed to defendant by the probation office. The presentence report indicates that on August 26, 1985, defendant was convicted in Marion County of driving while license suspended and sentenced to 250 days' imprisonment. Defendant's presence in Jefferson County was obtained by means of a "Writ of Habeas Corpus ad Prosequendum."

On December 30, 1985, defendant appeared in court and was informed of the allegations in the petition to revoke. The court appointed counsel and set February 3, 1986, for arraignment. No bond was set, and the assistant State's Attorney stated: "This man's [defendant] in custody on a traffic charge out of Marion County." On February 3, 1986, based upon the evidence presented by the State, the court found that defendant violated his probation. Sentencing was set for March 17, 1986.

At the sentencing hearing, defendant testified that if it were not for the petition to revoke probation, he would be in the Marion County jail serving a sentence of 250 days imposed upon a conviction for driving while license suspended. Defendant opined that the foregoing sentence would expire on April 28, 1986. The court sentenced defendant to four years' imprisonment and denied credit for time served on probation, except for December 4, 1985, until the date of sentencing for which credit was granted. The court found that the fine and costs had been paid in full.

Defendant contends that he is entitled to reimbursement of the $500 fine because he should have been credited for the 104 days served in jail on the petition to revoke pursuant to section 110-14 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 110-14). The State contends that defendant is not entitled to such credit as the foregoing section provides credit against a fine "levied on conviction" and probation revocation proceedings do not lead to a conviction.

Section 110 -- 14 provides in pertinent part:

"Any person incarcerated on a bailable offense who does not supply bail and against whom a fine is levied on conviction of such offense shall be allowed a credit of $5 for each day so incarcerated upon application of the defendant."

In the case at bar, however, defendant was never incarcerated on a bailable offense. Section 5-6-4(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005-6-4(a)) provides that when a petition to revoke probation is filed the court may order a summons, an arrest warrant, or the county probation department to issue a "notice to the offender to be present." A notice to be present is analogous to a "notice to appear," which is defined in section 107-1(c) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 107-1(c)) as "a written request issued by a peace officer that a person appear before a court at a stated time and place." A notice to appear has nothing to do with custody. As defendant was not in custody pursuant to any activity on the petition to revoke, there was no need for the court to set bond as provided in section 5-6-4(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005-6-4(b)), and in the case at bar, no bond was set by the court. In order to establish that he was incarcerated pursuant to the petition to revoke probation, he relies on the Jefferson County "Sheriff's Certificate of Time Served." Although defendant was incarcerated in the Jefferson County jail from December 4, 1985, to March 17, 1986, he was not incarcerated pursuant to an arrest warrant for failure to post bond but by writ of habeas corpus ad prosequendum which ordered the defendant removed from incarceration ...


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