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04/06/87 the People of the State of v. James Wilbert Davey

April 6, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

JAMES WILBERT DAVEY, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

506 N.E.2d 731, 154 Ill. App. 3d 167, 106 Ill. Dec. 931 1987.IL.448

Appeal from the Circuit Court of Champaign County; the Hon. Harold L. Jensen, Judge, presiding.

APPELLATE Judges:

JUSTICE LUND delivered the opinion of the court. SPITZ, P.J., and KNECHT, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND

Defendant was convicted of burglary (Ill. Rev. Stat. 1985, ch. 38, par. 19-1(a)) and enforcement of discipline (escape) in that he failed to return to the Urbana Community Correctional Center while on work release (Ill. Rev. Stat. 1985, ch. 38, par. 1003-6-4). He was sentenced to concurrent five-year terms of imprisonment for the offenses, the sentences to run concurrent to each other but consecutive to the remaining time he was incarcerated as a result of his conviction in cause No. 85-CF-1098. Defendant appeals arguing that the court erred in sentencing as it believed it was required to sentence defendant to terms to run consecutive to the term of imprisonment he was serving at the time of the offenses (Ill. Rev. Stat. 1985, ch. 38, pars. 1005-8-4(f), (g)), whereas another provision of the Unified Code of Corrections (Code) requires the trial court to try and sentence those confined by the Department of Corrections in the same manner as those not so confined (Ill. Rev. Stat. 1985, ch. 38, par. 1003-6-5).

The crux of defendant's argument is that the trial court had discretion to sentence him to serve these sentences consecutive to the earlier one, but that the court believed consecutive sentencing was mandatory and therefore did not exercise the requisite degree of discretion as mandated by section 3 -- 6 -- 5 of the Code. We disagree and affirm.

Section 5 -- 8 -- 4 of the Code provides in pertinent part:

"(f) A sentence of an offender committed to the Department of Corrections at the time of the commission of the offense shall be served consecutive to the sentence under which he is held by the Department of Corrections. However, in case such offender shall be sentenced to punishment by death, the sentence shall be executed at such time as the court may fix without regard to the sentence under which such offender may be held by the Department.

(g) A sentence under Section 3-6-4 for escape or attempted escape shall be served consecutive to the terms under which the offender is held by the Department of Corrections." (Ill. Rev. Stat. 1985, ch. 38, par. 1005-8-4(f), (g).)

Section 3 --6 -- 5 of the Code, relied on by defendant, provides:

"When any person is charged with committing an offense while confined by the Department, cognizance thereof shall be taken by the circuit court of the county wherein such crime was committed. Such court shall adjudicate and sentence the person charged with such crime in the same manner and subject to the same rules and limitations as are now established by law in relation to other persons charged with crime. The expense of prosecution shall be paid by the Department." (Ill. Rev. Stat. 1985, ch. 38, par. 1003-6-5.)

First, we observe that the language of both of these sections has been in the Code since 1973 (see Ill. Rev. Stat. 1973, ch. 38, pars. 1003-6-5, 1005-8-4(f), (g)), and has remained constant, as quoted above, since that time. Second, section 3-6-5 is within article VI of the Code (Ill. Rev. Stat. 1985, ch. 38, pars. 1003-6-1 through 1003-6-5), involving institutions, facilities, and programs therein, whereas section 5-8-4 of the Code is within article VIII (Ill. Rev. Stat. 1985, ch. 38, pars. 1005-8-1 through 1005-8-7), the provisions of which deal with imprisonment, with section 5-8-4 specifically detailing the statutory scheme for concurrent and consecutive terms of imprisonment.

Defendant maintains that the coexistence of section 3 -- 6 -- 5 with section 5 -- 8 -- 4(f) gives rise to an ambiguity in the latter provision which must be resolved in favor of the accused. Defendant relies on People ex rel. Gibson v. Cannon (1976), 65 Ill. 2d 366, 357 N.E.2d 1180, wherein the supreme court determined -- consistent with Fourth District precedent (People v. Cherry (1975), 29 Ill. App. 3d 929, 332 N.E.2d 55; People v. Griffith (1975), 26 Ill. App. 3d 405, 325 N.E.2d 392) -- the language of section 5 -- 8 -- 4 of the Code as it then read (1972 Ill. Laws 2258), did not require a parolee's sentence for an offense committed while on parole to run consecutive to the sentence underlying the parole. The court found this ...


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