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04/30/87 the People of the State of v. Ainter

April 30, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

VIRGIL BAINTER, DEFENDANT-APPELLANT

SEE PEOPLE

v.

JOSEPH (1986), 113 ILL. 2D 36, 495 N.E.2D 501; PEOPLE

v.

EASLEY (1987), 152 ILL. APP. 3D 839.

THE CASE OF PEOPLE EX REL. MIDDLETON

v.

MACDONALD (1980), 85 ILL. APP. 3D 982, 407 N.E.2D 775, HOLDS THAT SECTION 5 -- 8 -- 4(A) IS INAPPLICABLE WHERE THE STATE SENTENCE IS IMPOSED FIRST. MIDDLETON STATES:



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

507 N.E.2d 1309, 154 Ill. App. 3d 1026, 107 Ill. Dec. 940 1987.IL.565

Appeal from the Circuit Court of St. Clair County; the Hon. William B. Starnes, Judge, presiding.

APPELLATE Judges:

JUSTICE JONES delivered the opinion of the court. WELCH, J., concurs. PRESIDING JUSTICE KARNS, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JONES

The defendant, Virgil Bainter, appeals from an order of the circuit court of St. Clair County denying his motion for an order that would have modified his previously imposed State court sentence by providing that it be served concurrently with another sentence subsequently imposed in a Federal court. Defendant's motion was based upon section 5-8-4(a) of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1985, ch. 38, par. 1005-8-4(a)). We find that certain portions of the foregoing statute constitute an impermissible attempt by the legislature to revest the circuit court with jurisdiction to modify a sentence after the court has lost jurisdiction by entry of its judgment in the case and hold that the circuit court properly denied defendant's motion.

Section 5 -- 8 --4(a) is concerned with concurrent and consecutive terms of imprisonment. It provides:

"Concurrent and Consecutive Terms of Imprisonment. (a) When multiple sentences of imprisonment are imposed on a defendant at the same time, or when a term of imprisonment is imposed on a defendant who is already subject to sentence in this State or in another state, or for a sentence imposed by any district court of the United States, the sentences shall run concurrently or consecutively as determined by the court. When a term of imprisonment is imposed on a defendant by an Illinois circuit court and the defendant is subsequently sentenced to a term of imprisonment by another state or by a district court of the United States, the Illinois circuit court which imposed the sentence may order that the Illinois sentence be made concurrent with the sentence imposed by the other state or district court of the United States. The defendant must apply to the circuit court within 30 days after the defendant's sentence imposed by the other state or district of the United States is finalized. The court shall not impose consecutive sentences for offenses which were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective, unless, one of the offenses for which defendant was convicted was a Class X or Class 1 felony and the defendant inflicted severe bodily injury, in which event the court may enter sentences to run consecutively. Sentences shall run concurrently unless otherwise specified by the court." Ill. Rev. Stat. 1985, ch. 38, par. 1005-8-4(a).

The facts disclose that on March 22, 1983, in the circuit of St. Clair County, defendant pleaded guilty to armed robbery and was sentenced to 15 years' imprisonment. Thereafter, defendant pleaded guilty to transferring a firearm in interstate commerce without paying a transfer tax in violation of 28 U.S.C. sec. 5861(e) and was sentenced to 10 years' imprisonment, which the United States District Court ordered to be served consecutively to the 15-year sentence imposed in the circuit court. On June 18, 1984, defendant's Federal conviction and sentence were affirmed by the United States Circuit Court of Appeals. On July 16, 1984, defendant filed his "Motion for Modification of Sentence" in the circuit court of St. Clair County. On October 21, 1985, a hearing on the motion was conducted. The court denied the motion stating:

"The statute provides that this Court may order concurrent sentences. It is obviously discretionary with the Court whether that should be done. It appears of record that the federal Judge intended that the sentence should be consecutive. It would be inappropriate for this court not to extend comity to the Federal Court Order."

Defendant contends that section 5 -- 8 --4(a) of the Code confers upon the trial court the discretion to make his State-imposed sentence run concurrently with a subsequently imposed Federal court sentence and argues that the conferred discretion was not exercised in this case. The State contends that the defendant's petition was not timely since it was filed more than 30 days after sentence was imposed by the Federal district court. The defendant counters that by use of the word "finalized" (in our opinion, a very nebulous term as used in this statute) in section 5 -- 8 -- 4(a), the legislature indicated an intent that the defendant would have 30 days from the date the Federal court conviction and sentence were affirmed by the Circuit Court of Appeals or other court of review in which to file his petition.

We believe that the arguments of both the defendant and the State are somewhat misdirected in that they appear to assume that our legislature would have the power to revest the circuit court with jurisdiction to change the nature and extent of the sentence originally imposed long after the court had lost its jurisdiction over the case. We believe such an assumption to be misplaced since we view as an unconstitutional violation of the separation of powers doctrine that portion of section 5 -- 8 -- 4(a) of the Code that provides:

"When a term of imprisonment is imposed on a defendant by an Illinois circuit court and the defendant is subsequently sentenced to a term of imprisonment by another state or by a district court of the United States, the Illinois circuit court which imposed the sentence may order that the Illinois sentence be made concurrent with the sentence imposed by the other state or district court of the United States."

"When a State sentence precedes a Federal sentence, it is the province of the Federal court to determine, in fixing the subsequent Federal sentence, what weight should be given to the existing Illinois sentence. (People ex rel. Fleming v. Pate (1971), 48 Ill. 2d 426, 270 N.E.2d 4, cert. denied (1972), 404 U.S. 1020, 30 L. Ed. 2d 669, 92 S. Ct. 691.) Only where the State sentence is imposed after the imposition of the Federal sentence, should the question whether the sentences are to be concurrent or consecutive be determined ...


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