APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT
520 N.E.2d 1255, 166 Ill. App. 3d 843, 117 Ill. Dec. 904 1988.IL.353
Appeal from the Circuit Court of Saline County; the Hon. Michael Henshaw, Judge, presiding.
JUSTICE KARNS delivered the opinion of the court. WELCH and LEWIS, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KARNS
The defendant, Henry Larue Rollins, pleaded guilty to unlawful possession of a controlled substance, lysergic acid diethylamide, a violation of section 402(b) of the Illinois Controlled Substances Act (Act) (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1402(b)). Defendant was sentenced to 30 months' probation and as an incident of that probation, defendant was ordered to serve six months' periodic imprisonment. Subsequently, defendant's probation was revoked and he was again sentenced to 30 months' probation, and as an incident of that probation, he was ordered to serve six months in the county jail. On appeal, defendant contends that he must be given credit against his second sentence of probation for the time served initially on probation and that his sentence to the county jail must be credited with the time spent on periodic imprisonment.
A violation of section 402(b) of the Act is punishable as a Class 4 felony on which a term of probation not to exceed 30 months can be imposed. (Ill. Rev. Stat. 1985, ch. 38, par. 1005-6-2(b)(2); ch. 56 1/2, par. 1402(b).) As incidents of probation, defendant could have been sentenced to periodic imprisonment not exceeding 18 months in duration (Ill. Rev. Stat. 1985, ch. 38, pars. 1005-6-3(b)(1), 1005-7-1(d)) or a period of imprisonment not in excess of six months (Ill. Rev. Stat. 1985, ch. 38, par. 1005-6-3(d)). Section 5-6-4(h) of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1985, ch. 38, par. 1005-6-4(h)) provides:
"Resentencing after revocation of probation or conditional discharge or supervision shall be under Article 4. Time served on probation, conditional discharge or supervision shall be credited by the court against a sentence of imprisonment or periodic imprisonment unless the court orders otherwise."
"If the court finds that the offender has violated a condition [of probation] at any time prior to the expiration or termination of the period, it may continue him on the existing sentence, with or without modifying or enlarging the conditions, or may impose any other sentence that was available under Section 5 -- 5 -- 3 [of the Code] at the time of initial sentencing."
Section 5 -- 6 -- 4(e) provides that where a court does not intend to continue the defendant on the original sentence, it may impose any other sentence that was available when he was first sentenced. The court, therefore, may impose any length of probation upon revocation that was available originally, regardless of the amount of the previously served probation. Thus, where a probationer has completed a substantial portion of his probation and then commits an egregious violation of probation, the court in its discretion may order the maximum term anew to rehabilitate the errant probationer. Otherwise, a court might be more inclined to sentence the defendant to imprisonment if an extended term of probation would be unavailable. (People v. Miller (1982), 109 Ill. App. 3d 255, 256-57, 440 N.E.2d 409, 410.) Therefore, we conclude that the court could properly sentence defendant to 30 months' probation upon revocation of probation and not credit him for time previously served on probation.
We must next decide whether defendant is entitled to credit against the six-month jail sentence imposed as an incident of probation for the time spent on periodic imprisonment, which had been imposed as an incident of the first probation. In addition to the aforementioned quoted sections of the Code, the following sections of the Code are pertinent to our Discussion of this issue:
"The court shall not impose a sentence of periodic imprisonment if it imposes a sentence of imprisonment upon the defendant in excess of 90 days." (Ill. Rev. Stat. 1985, ch. 38, par. 1005-7-1(c).)
"The offender shall be given credit on the determinate sentence or maximum term and the minimum period of imprisonment for time spent in custody as a result of the offense for which the sentence was imposed, at the rate specified in Section 3-6-3 [Ill. Rev. Stat. 1985, ch. 38, par. 1003-6-3] of this Code." Ill. Rev. Stat. 1985, ch. 38, par. 1005-8-7(b).
In People v. Scheib (1979), 76 Ill. 2d 244, 390 N.E.2d 872, our supreme court dealt with whether certain credits should be given against a sentence of imprisonment in the Department of ...