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02/17/94 PEOPLE STATE ILLINOIS v. GEORGE BROOKS

February 17, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
GEORGE BROOKS, APPELLANT.



Freeman

The opinion of the court was delivered by: Freeman

JUSTICE FREEMAN delivered the opinion of the court:

On April 25, 1991, defendant, George Brooks, was arrested, charged with armed robbery and confined to the Whiteside County jail, pending trial on that charge. In May 1991, during a bond reduction hearing, the circuit court of Whiteside County found defendant in contempt of court for misrepresenting his juvenile record and sentenced him to 90 days in the county jail. Defendant served the 90-day sentence contemporaneous with his pretrial incarceration in the county jail on the armed robbery charge. Following a jury trial in the circuit court, defendant was convicted of armed robbery (Ill. Rev. Stat. 1991, ch. 38, par. 18-2(a)), sentenced to 10 years' imprisonment in the Illinois Department of Corrections (Department) plus three years' mandatory supervised release and ordered to pay $2,767.93 in restitution within two years of his release from prison (Ill. Rev. Stat. 1991, ch. 38, par. 1005-5-6(f)). The circuit court additionally ordered that defendant receive sentence credit for "actual days served in the Whiteside County Jail." From the time of his arrest until transfer to the Department on September 26, 1991, defendant was continuously confined in the Whiteside County jail for a period of 155 days.

Defendant appealed, inter alia, the order of restitution. Defendant also requested that the cause be remanded to the trial court for an amendment of the mittimus, for sentence credit purposes, to show the number of actual days defendant served in the county jail. The appellate court affirmed the order of restitution, vacated the mittimus and remanded the cause to the trial court for a determination of the appropriate number of sentence credit days and a conforming amendment of the mittimus (241 Ill. App. 3d 84). We granted defendant's petition for leave to appeal pursuant to Supreme Court Rule 315 (134 Ill. 2d R. 315). We now affirm in part and reverse in part.

ISSUES

Defendant raises two issues: (1) whether the order of restitution, requiring payment within two years of his release from prison, after serving a 10-year prison term, complied with the five-year time limit proviso of section 5-5-6(f) of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1991, ch. 38, par. 1005-5-6(f)); and (2) whether the State has waived the argument, upon remand, that defendant is not entitled to 90 days of sentence credit for time served in the county jail on the separate sentence for contempt.

I

Five-Year Time Period for Payment of Restitution

Defendant argues that the restitution order failed to comply with section 5-5-6(f) of the Code, which provides in pertinent part:

"Taking into consideration the ability of the defendant to pay, the court shall determine whether restitution shall be paid in a single payment or in installments, and shall fix a period of time not in excess of 5 years within which payment of restitution is to be paid in full." (Emphasis added.) Ill. Rev. Stat. 1991, ch. 38, par. 1005-5-6(f).

Defendant argues that the statutory five-year time period necessarily begins at the time an order of restitution is entered. According to defendant, other parts of the restitution statute (Ill. Rev. Stat. 1991, ch. 38, par. 1005-5-6) and public policy considerations reveal the legislature's intent that the time period begin at sentencing. The State insists, however, that the proviso in section 5-5-6(f) only requires that payment of restitution be made within a definitive five-year period which may begin at sentencing or after a defendant's release from prison. Appellate court decisions interpreting section 5-5-6(f) are split in their views on the subject. Compare People v. Nixon (1993), 241 Ill. App. 3d 272 (five-year period commences at time of sentencing hearing); People v. Place (1992), 238 Ill. App. 3d 1035, 178 Ill. Dec. 840, 605 N.E.2d 634 (implying five-year period commences at sentencing); People v. Lewis (1992), 228 Ill. App. 3d 654, 170 Ill. Dec. 235, 592 N.E.2d 671 (restitution order providing for payment after defendant's release from 18-year prison term violates section 5-5-6(f)); People v. Fisher (1989), 186 Ill. App. 3d 255, 134 Ill. Dec. 620, 542 N.E.2d 1127 (restitution order providing for payment within two years after defendant's release from 15-year prison term failed to comply with time limit of section 5-5-6(f)); with People v. Chapin (1992), 233 Ill. App. 3d 28, 174 Ill. Dec. 38, 597 N.E.2d 1250 (statutory five-year time period of section 5-5-6(f) need not commence on date of restitution order).

The primary rule of statutory construction is to give effect to the true intent of the legislature. (See People ex rel. Baker v. Cowlin (1992), 154 Ill. 2d 193, 197, 180 Ill. Dec. 738, 607 N.E.2d 1251.) And the language of a statute is the best indication of the legislative drafters' intent. Where the drafters' intent can be ascertained from the statutory language, it must be given effect without resort to other aids for construction. (See People v. Bryant (1989), 128 Ill. 2d 448, 455, 132 Ill. Dec. 415, 539 N.E.2d 1221.) Furthermore, when ascertaining legislative intent, rules of statutory construction require that the entire statute be considered. (See People v. Bratcher (1976), 63 Ill. 2d 534, 543, 349 N.E.2d 31.) As regards penal statutes, they are to be strictly construed in favor of an accused without, however, defeating the legislative intent. See Bratcher, 63 Ill. 2d at 543.

Relying on these principles, defendant directs our attention to the introductory paragraph of section 5-5-6, which provides in pertinent part:

"The court shall at the sentence hearing determine whether restitution is an appropriate sentence to be imposed on each defendant convicted of an offense. If the court determines that an order directing the offender to make restitution is appropriate the offender may be sentenced to make restitution which shall be determined by the Court as hereinafter set forth." (Emphasis added.) (Ill. Rev. Stat. 1991, ch. 38, par. 1005-5-6.)

Defendant interprets this paragraph as requiring a trial Judge to make a determination as to restitution at the sentencing hearing and then to make the terms of that order conform to the remaining paragraphs, including the five-year time period in paragraph (f). (See also Nixon, 241 Ill. App. 3d at 274 ("the only definitive point in time * * * to which paragraph (f) could be referring as the starting point (from which the order of restitution's five-year period is to be measured) is the sentencing hearing referred to in the introductory paragraph of section 5-5-6").) Thus, defendant argues, the five-year time period would have to begin at sentencing.

We are not persuaded that this Conclusion necessarily follows. That the trial court makes restitution determinations at sentencing is only logical; under our criminal statutes, restitution is a sentence and a part of the sentencing scheme. It does not follow however that, because restitution determinations are made at sentencing under section 5-5-6, the five-year time period for restitution necessarily begins at that time, also. We do not interpret the phrase "shall ...


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