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11/18/88 the People of the State of v. Rebecca Farmer

November 18, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

REBECCA FARMER, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

531 N.E.2d 137, 176 Ill. App. 3d 436, 126 Ill. Dec. 4 1988.IL.1673

Appeal from the Circuit Court of St. Clair County; the Hon. James M. Radcliffe, Judge, presiding.

APPELLATE Judges:

JUSTICE LEWIS delivered the opinion of the court. WELCH and CALVO, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LEWIS

The defendant, Rebecca Farmer, pleaded guilty to arson and was sentenced to probation. Defendant's probation was subsequently revoked and she was sentenced to three years' imprisonment. On appeal, defendant initially contends that she is entitled to a new sentencing hearing because no presentence report was prepared and the parties did not agree to a specific sentence. Defendant lastly contends that she should be given credit against her prison sentence for the time she served on probation since the Judge did not expressly deny her that credit.

On February 2, 1987, a criminal information was filed which charged that defendant committed arson on January 31, 1987. On March 17, 1987, defendant pleaded guilty to arson. At the commencement of the proceedings, both parties agreed to waive a presentence investigation. The State was prepared to recommend probation and as incidents of probation that defendant serve 120 days in the county jail and seek mental health treatment, and defendant asked that she not be sentenced to a longer period than she had already served in the county jail. As part of the plea proceedings, the State stated that she was arrested on January 31, 1987. After the court determined that defendant's plea of guilty was knowingly and understandingly entered, the State stated that there had been no plea agreement and recommended that mental health counseling be included in whatever sentence the court determined was fair. Defendant asked to be sentenced to probation and sentenced to 45 days in the county jail as an incident of probation with credit for time served. The court sentenced defendant to two years' probation. As incidents to probation, defendant was ordered to follow a course of treatment prescribed by the Department of Mental Health facility in the area in which she lived and was sentenced to three months in jail with credit for time served.

On March 18, 1987, the court ordered that on March 24, 1987, the defendant be released to the community counseling service.

On February 4, 1988, the State filed a petition to revoke probation on the basis that (1) defendant failed to report to the probation office as required; (2) she failed to report a change of address as required; (3) she traveled more than 100 miles from her home, without the permission of the court or her probation officer; and (4) she failed to attend mental health counseling as required by the probation order.

On February 16, 1988, the State presented evidence on defendant's alleged probation violations. The proceedings were continued to February 17, 1988, at which time the court found that the State sustained its burden of proof. The court revoked her probation and asked if the parties wanted a presentence investigation. Both parties, however, waived the presentence investigation. Defendant presented her own testimony as evidence in mitigation. The State recommended that defendant be sentenced to a period of imprisonment in the Department of Corrections. Defendant asked that she not be sent to the Department of Corrections. The court had the benefit of a psychological evaluation of defendant which found that she was fit to stand trial and of a United States Federal Bureau of Investigation report which listed 20 convictions for prostitution or related offenses. The court sentenced defendant to three years' imprisonment. The court also stated: "She will be given credit for time served in the county jail on the petition to revoke probation. She will also be given credit for time served prior to and subsequent to the plea for any time served in the county jail."

Defendant initially contends that her sentence must be vacated because no presentence investigation was prepared as contemplated by the Unified Code of Corrections. (See Ill. Rev. Stat. 1987, ch. 38, pars. 1005-3-1, 1005-3-2.) The presentence investigation and report is a mandatory legislative requirement which cannot be waived except in accordance with the exception in the statute. (People v. Youngbey (1980), 82 Ill. 2d 556, 561, 413 N.E.2d 416, 419.) The exception is where both parties agree to the imposition of a specific sentence, providing there is a finding made for the record as to defendant's history of criminality. (Ill. Rev. Stat. 1987, ch. 38, par. 1005-3-1.) In the case at bar, neither at the initial sentencing hearing nor at the sentencing hearing after revocation of probation did the parties fully agree to a specific sentence; therefore, the statutory exception does not apply. A presentence investigation and report was a mandatory prerequisite to the sentencing of defendant; therefore, this cause is remanded to the circuit court of St. Clair County for such a report and for the resentencing of defendant.

Defendant maintains that she could not be sentenced initially on March 17, 1987, because no presentence report was prepared; therefore, defendant's sentence must be vacated and the cause remanded for resentencing as of March 17, 1987. In People v. Harris (1985), 105 Ill. 2d 290, 473 N.E.2d 1291, defendant was convicted of burglary. Harris waived a presentence report, and the court gave him the option of being sentenced to either a minimum term of imprisonment or a three-year term of probation. The court warned the defendant, however, that if he violated the terms and conditions of his probation he would be sentenced to prison for five years. Defendant opted to be sentenced to a three-year term of probation. Subsequently, Harris' probation was revoked, and he was sentenced to five years' imprisonment; however, the court did not order a presentence report prior to imposing sentence upon revocation of probation. The supreme court held that the requirement of a presentence report, contained in section 5 -- 3 -- 1, applies to resentencing following probation revocation. (Harris, 105 Ill. 2d at 299, 473 N.E.2d at 1295.) Our supreme court reversed the trial court's determination regarding the need for a presentence report and the propriety of defendant's sentence and remanded the cause for resentencing. (Harris, 105 Ill. 2d at 304, 473 N.E.2d at 1298.) The court did not remand the case for sentencing as of the date Harris was initially placed on probation. We, therefore, conclude that defendant in the case at bar should not be sentenced as of the date she was initially placed on probation.

Defendant contends that she must be given further credit against her prison sentence since the Judge did not expressly deny her that credit. At time defendant committed the arson, January 31, 1987, section 5 -- 6 -- 4(h) of the Unified Code of Corrections read, in part:

"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." ...


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