APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
538 N.E.2d 203, 182 Ill. App. 3d 515, 131 Ill. Dec. 15 1989.IL.627
Appeal from the Circuit Court of Vermilion County; the Hon. Robert J. Steigmann, Judge, presiding.
JUSTICE KNECHT delivered the opinion of the court. SPITZ and GREEN, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KNECHT
The defendant, Kenneth Schwartz III, appeals from an order revoking his probation and resentencing him to the maximum term of imprisonment with 98 days' credit for time served in jail on the offenses, but without expressly indicating whether the defendant was also entitled to credit for time otherwise served while on probation.
On March 28, 1986, the defendant was charged by information in Vermilion County with aggravated battery (Ill. Rev. Stat. 1987, ch. 38, par. 12-4(b)(6)), criminal damage to property (over $300) (Ill. Rev. Stat. 1987, ch. 38, par. 21-1(a)), and driving while under the influence of alcohol (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11-501(a)(2)). Pursuant to a plea agreement, the State dismissed the first charge and the defendant pleaded guilty to the remaining charges. On March 23, 1987, the circuit court sentenced the defendant to a 30-month term of probation on the second charge and to a concurrent 12-month term of probation on the third charge. As a condition of probation, the circuit court ordered the defendant to serve alternate weekends in the county jail on an 18-month term of periodic imprisonment. On March 10, 1988, due in part to the alleged failure of the defendant to fulfill the condition of periodic imprisonment, the State filed a petition to revoke the probation of the defendant. On May 4, 1988, the circuit court found the State had proved its petition by a preponderance of the evidence and revoked the probation of the defendant. On June 22, 1988, the circuit court resentenced the defendant to a three-year term of imprisonment for criminal damage to property and to a concurrent 364-day term of imprisonment for DUI, with credit as stated above.
The sole issue presented for review is whether the defendant may elect the applicable sentencing statute on revocation of probation where the statute is amended during the pendency of the action.
"(h) Resentencing after revocation of probation, conditional discharge or supervision shall be under Article 4. Time served on probation, conditional discharge or supervision shall not be credited by the court against a sentence of imprisonment or periodic imprisonment unless the court orders otherwise." (Emphasis added.) Ill. Rev. Stat. 1987, ch. 38, par. 1005-6-4(h).
"This statute affects sentencing procedures and is effective for all sentences imposed after December 31, 1987, regardless of the date of conviction. It is procedural and not substantive in nature. The trial court's failure to comment about defendant's probation means defendant will not receive credit for that time."
In the instant action, the circuit court did not expressly indicate whether the defendant is entitled to credit for time served while on probation. Under the former sentencing statute, in effect at the time of the underlying offenses, the silence of the circuit court was taken to mean an automatic award of such credit to the defendant. (Ill. Rev. Stat. 1985, ch. 38, par. 1005-6-4(h).) Under the amended sentencing statute, in effect at the time the defendant was resentenced on revocation of probation, however, the silence of the circuit court is taken to mean an automatic denial of such credit to the defendant. Ill. Rev. Stat. 1987, ch. 38, par. 1005-6-4(h).
The defendant contends he should have been allowed to elect the applicable sentencing statute on revocation of probation as the statute was amended during the pendency of the action. He requests this court reconsider Kauffman in light of cases permitting the defendant to make such an election. We find his contention is without merit.
"[Election] is crucial in avoiding the prohibition against ex post facto laws because it allows the defendant to [subjectively] determine which option [is] most favorable to him." ( People v. Finley (1980), 82 Ill. App. 3d 307, 310, 402 N.E.2d 769, 772.) Under Illinois law, a criminal defendant may elect the applicable sentencing statute only when a substantive amendment is enacted during the pendency of the action. (See People v. Hollins (1972), 51 Ill. 2d 68, 280 N.E.2d 710; People v. Andrews (1981), 95 Ill. App. 3d 595, 420 N.E.2d 509.) Absent such an amendment, however, the defendant may not elect the applicable sentencing statute.
The decision whether to award the defendant credit for time served while on probation is a matter of discretion for the circuit court. (People v. Chumbley (1982), 106 Ill. App. 3d 72, 76, 435 N.E.2d 811, 814.) This discretion is not affected by the amended sentencing statute. Rather, the amended sentencing statute only directs the effect to be accorded where the circuit court does not expressly indicate its credit decision. (Ill. Rev. Stat. 1987, ch. 38, par. 1005-6-4(h).) ...