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07/28/88 the People of the State of v. Antonio T. Brady

July 28, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

ANTONIO T. BRADY, DEFENDANT-APPELLANT

IN PEOPLE

v.

COLEMAN (1983), 120 ILL. APP. 3D 619, 623, 458 N.E.2D 634, 636, THE COURT STATED:



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

527 N.E.2d 590, 172 Ill. App. 3d 1079, 123 Ill. Dec. 127 1988.IL.1161

Appeal from the Circuit Court of Macon County; the Hon. Rodney A. Scott, Judge, presiding.

APPELLATE Judges:

JUSTICE KNECHT delivered the opinion of the court. McCULLOUGH and LUND, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KNECHT

In April 1987 defendant pleaded guilty to the offense of driving while his driver's license was revoked, having previously been convicted in May 1986 of driving while license revoked, with the prior conviction for leaving the scene of a personal injury accident, a Class 4 felony. (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 6-303(d).) On May 13, 1987, he was sentenced to a term of one year of probation. Thereafter, a report of probation violation was filed, alleging that on or about May 30, 1987, defendant committed the offense of driving a motor vehicle while license revoked with a prior driving while license revoked conviction. After hearing in October 1987, the court found the State had proved this violation of probation by a preponderance of the evidence and, on October 30, 1987, defendant was sentenced to a term of 18 months' imprisonment, with credit for time served in jail but no credit for time served on probation. Upon motion of the State's Attorney for reimbursement of the county for court-appointed counsel (Ill. Rev. Stat. 1987, ch. 38, par. 113-3.1), the court found defendant had the ability to pay, as demonstrated by cash bond posted, and ordered reimbursement in the sum of $45. Defendant appeals from the judgment of the circuit court of Macon County, arguing (1) the trial court erred in failing to order an updated presentence investigation report prior to sentencing after defendant's revocation of probation; and (2) the court abused its discretion in ordering reimbursement to Macon County for the services of court-appointed counsel from monies deposited for his bail.

With respect to his first argument, defendant relies on section 5-3-1 of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1985, ch. 38, par. 1005-3-1) and on the supreme court's decision in People v. Harris (1985), 105 Ill. 2d 290, 473 N.E.2d 1291.

Section 5-3-1 of the Code provides: "A defendant shall not be sentenced for a felony before a written presentence report of investigation is presented to and considered by the court." (Ill. Rev. Stat. 1985, ch. 38, par. 1005-3-1.) This section was considered in People v. McCrory (1976), 43 Ill. App. 3d 892, 357 N.E.2d 709. In McCrory, as here, the defendant argued his sentence should be vacated because the trial court did not order a second, or "updated," presentence report prior to resentencing after finding a probation violation and terminating probation. This court disagreed, reasoning:

"In the instant case, however, a presentence report was prepared after defendant's original conviction and the record shows that the Judge considered that report before imposing sentence. We do not believe that either [ People v. Comerford (1975), 35 Ill. App. 3d 287, 341 N.E.2d 131], or the Unified Code of Corrections requires that a second presentence report was necessary in the instant case. Here, the presentence report was prepared just six months earlier when defendant was placed on probation. The Judge who presided at the probation revocation hearing was the same Judge who entered the original order for probation. After finding defendant violated probation, the Judge offered to set the sentencing hearing for a later date if defendant wished to present any other mitigating evidence but defense counsel stated that defendant wished to proceed with sentencing. The record shows the Judge expressly considered the presentence report before imposing sentence. Under these circumstances, a second presentence report was unnecessary." McCrory, 43 Ill. App. 3d at 893, 357 N.E.2d at 710.

See also People v. Chaney (1977), 48 Ill. App. 3d 775, 362 N.E.2d 1375, appeal denied (1977), 66 Ill. 2d 632 (wherein defendants contended they were improperly sentenced since the court had insufficient information upon which to base sentence and the reports were outdated-reports on two defendants were prepared at least 17 months before being filed in the cause and the report on the third defendant was prepared three years and three months earlier-held, any objection to timeliness of reports was waived when defendants failed to object at trial level.) But see People v. Demma (1980), 92 Ill. App. 3d 303, 415 N.E.2d 1244 (wherein the original presentence report was prepared based on the defendant's December 1974 guilty plea to felony theft and burglary and he was placed on five years' probation. A hearing on probation violations was conducted in December 1978 and probation was revoked. Prior to sentencing, defendant purported to waive his right to a presentence report. Upon considering section 5-3-1 of the Code, as amended (see Ill. Rev. Stat. 1979, ch. 38, par. 1005-3-1) (eliminating language permitting waiver except in the case of an agreed sentence), the Demma court vacated the sentences and remanded for resentencing where "no such [presentence] reports were prepared prior to the sentencing of the defendant." 92 Ill. App. 3d at 308, 415 N.E.2d at 1248).

"In deciding whether a presentence report should be required after probation revocation in a given case, an important consideration is whether a report was prepared at the original sentencing hearing. If the court had a presentence report at the time probation was imposed, it is not necessary to prepare a second report before sentencing after probation is revoked; in this situation, the statutory purpose is adequately served by the original report, if it is relatively current and if the defendant is given the opportunity to present any additional information. (People v. McCrory (1976), 43 Ill. App. 3d 892, 357 N.E.2d 709; see People v. Curtis (1978), 61 Ill. App. 3d 34, 377 N.E.2d 844; compare People v. Demma (1980), 92 Ill. App. 3d 303, 415 N.E.2d 1244 (report required where probation was imposed several years earlier); see also People v. Morton (1981), 102 Ill. App. 3d 280, 430 N.E.2d 383 (second report not required for resentencing after remand).) Thus, where the defendant has waived a presentence report when probation was initially imposed, as was generally permissible under prior law (Ill. Rev. Stat. 1977, ch. 38, par. 1005-3-1), a presentence report should be required before the defendant is sentenced after a probation revocation. (People v. Comerford (1975), 35 Ill. App. 3d 287, 341 N.E.2d 131; see People v. Demma (1980), 92 Ill. App. 3d 303, 415 N.E.2d 1244.) . . . This district, while not addressing the issue directly, has noted the desirability of a presentence report in such situations. (People v. Curtis (1978), 61 Ill. App. 3d 34, 377 N.E.2d 844.) The presentence report is designed to assist the Judge in determining an appropriate sentence. (People v. Youngbey (1980), 82 Ill. 2d 556.) Where the Judge has no such guidance from prior proceedings, such as the original sentencing hearing, it is appropriate to require that the Judge be supplied with the information the report provides before imposing sentence after probation revocation. The potential for prejudice is apparent where, as in this case, the sentence imposed is greater than the minimum term permitted by statute. (See Ill. Rev. Stat. 1981, ch. 38, pars. 19-1, 1005-8-1; compare People v. Martin (1979), 76 Ill. App. 3d 765, 395 N.E.2d 24.) " Coleman, 120 Ill. App. 3d at 623, 458 N.E.2d at 636.

Defendant maintains the supreme court established a per se rule in Harris which was violated by the trial court here and can only be cured by reversing the sentence and remanding for resentencing. In Harris, the court considered section 5 -- 3 -- 1 in the context of sentencing after revocation of probation:

"[When] the defendant is placed on probation, section 5 -- 3 -- 1 requires a report prior to resentencing unless there is an agreed-upon sentence in the probation-revocation proceeding. Since no agreement was reached between the parties as to the specific sentence which was to be imposed following the revocation of defendants' probation, presentence reports should have been ordered by the respective courts. . . .

Nonetheless, the State urges this court to affirm the sentences which were imposed by finding that the defendants have waived their right to protest the absence of a presentence report. Although neither defendant objected to the trial courts' sentencing procedures during the probation-revocation proceedings, we cannot say that this issue has been waived. In Youngbey , this court held 'that the presentence investigation and report . . . cannot be waived except in accordance with the exception in the statute.' (People v. Youngbey (1980), 82 Ill. 2d 556, 561.) In that case the defendant had expressly waived a presentence investigation report. However, since no specific sentence had been agreed to by the parties, the court found 'that the language of section 5 -- 3 -- 1, requiring a presentence investigation report, not only is ...


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