APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
515 N.E.2d 1042, 161 Ill. App. 3d 938, 113 Ill. Dec. 883
Appeal from the Circuit Court of Calhoun County; the Hon. Alfred L. Pezman, Judge, presiding. 1987.IL.1540
JUSTICE McCULLOUGH delivered the opinion of the Court. SPITZ, P.J., and KNECHT, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH
The defendant, William D. Planer, was convicted of burglary and theft, and subsequently sentenced to 30 months' probation. On December 30, 1986, the State filed a petition to revoke probation alleging the defendant had been cited for driving while license revoked. Ill. Rev. Stat. 1985, ch. 95 1/2, par. 6-303.
Following a hearing on the matter, the defendant's probation was ordered revoked and defendant was thereafter sentenced to the Department of Corrections for a term of four years.
The defendant appeals the order of the court and in support thereof argues: (1) the trial court erred by not accepting the defendant's theory of necessity; (2) the State misrepresented the law during closing argument; (3) he was denied effective assistance of counsel; and (4) the judgment and mittimus do not accurately reflect the proper amount of credit due for time served.
We affirm and remand for modification of the judgment with respect to the sentence imposed.
On December 17, 1985, the defendant was convicted of burglary and theft, and was subsequently sentenced to probation. On December 12, 1986, the defendant was cited for driving while license revoked. (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 6-303.) As a result, on December 30, 1986, the State filed a petition to revoke the defendant's probation. Following a hearing, the defendant's probation was revoked.
At the probation revocation proceedings, Mike Margherio, chief of police of Hardin, Illinois, testified that on December 19, 1985, he witnessed defendant driving a red pickup truck. Margherio knew the defendant, and was aware of the fact that his driving privileges had been suspended. As a result, Margherio stopped the truck, issued defendant a citation, and transported the defendant to the Calhoun County sheriff's office. The defense does not dispute that defendant was driving.
Margherio noted there were two passengers in the truck, a woman, Letha Klaas, who was seated in the middle, and a man later identified as Bob Harman. When asked why he was driving, the defendant asked Margherio to "give him a break because he couldn't afford a ticket." Defendant made no mention of any problem or medical emergency.
The State introduced into evidence a certified copy of the defendant's driving record which indicated defendant's license was revoked on December 19, 1985.
The defendant presented Bob Harman, a passenger in the truck, who stated that he was at defendant's residence on December 19, 1985. At approximately 2 p.m., Letha Klaas, defendant's pregnant fiancee, began experiencing stomach pains and indicated that she was going to the doctor in Jerseyville. Harman testified that he accompanied the defendant and Klaas. Harman, who is 17 years old and not a licensed driver, stated that Klaas initially drove the pickup truck. Shortly after they departed, Klaas realized she had forgotten her medical ...