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06/30/94 PEOPLE STATE ILLINOIS v. HENRY SCOTT

June 30, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE
v.
HENRY SCOTT, DEFENDANT-APPELLANT



Appeal from Circuit Court of Vermilion County. No. 92CF254. Honorable Rita B. Garman, Judge Presiding.

As Corrected September 6, 1994.

Honorable Robert J. Steigmann, J., Honorable John T. McCULLOUGH, P.j., Honorable Frederick S. Green, J.

The opinion of the court was delivered by: Steigmann

JUSTICE STEIGMANN delivered the opinion of the court:

In January 1993, a jury found defendant, Henry Scott, guilty of residential burglary (Ill. Rev. Stat. 1991, ch. 38, par. 19-3) and robbery of a person 60 years of age or over (Ill. Rev. Stat. 1991, ch. 38, par. 18-1). Thereafter, the trial court sentenced defendant to concurrent prison terms of six years on each conviction. Defendant appeals, arguing that the trial court erred by (1) failing to find him eligible for treatment under the Illinois Alcoholism and Other Drug Dependency Act (Act) (20 ILCS 305/1-101 et seq. (West 1992)), and (2) incorrectly determining the number of days to which he was entitled as credit for his time spent in pretrial incarceration.

We agree with defendant on both arguments and remand to the trial court for reconsideration of defendant's sentence.

I. BACKGROUND

On the morning of June 28, 1992, defendant knocked on the door of Everett Cox' home. When Cox answered, defendant told him that he was the new paperboy and asked to use Cox' phone because his car had broken down. Cox, who was 85 years of age, agreed and let defendant enter his home. Once inside, defendant ripped the kitchen phone out of the wall, grabbed Cox from behind, and told Cox that he was going to rob him. Defendant also told Cox that he did not want to hurt him but he would if he had to. Defendant led Cox into the bedroom and took Cox' billfold, containing approximately $400 and some credit cards. Defendant then led Cox into the bathroom, told him to stay there for 15 minutes, and immediately left.

II. DEFENDANT'S ELIGIBILITY FOR TREATMENT UNDER THE ACT

Defendant first argues that the trial court erred by finding that he was ineligible for treatment under the Act. Section 10-101 of the Act provides, in pertinent part, as follows:

"Election of treatment. An addict or alcoholic who is charged with or convicted of a crime may elect treatment under the supervision of a licensed program designated by the Department * * * unless * * * (g) the person has been convicted of residential burglary and has a record of one or more felony convictions." 20 ILCS 305/10-101 (West 1992).

Pointing out that he had no prior felony convictions, defendant claims that his robbery conviction in this case could not be used to satisfy the element of his having a "record of one or more felony convictions" under section 10-101(g) of the Act. (See 20 ILCS 305/10-101(g) (West 1992).) The State responds that defendant is not eligible for treatment under the Act because his robbery conviction became a "conviction" under section 10-101(g) after the trial court entered judgment in January 1993 on the jury's guilty verdict of robbery prior to defendant's sentencing hearing in April 1993. When considering defendant's eligibility for treatment under the Act at the sentencing hearing, the trial court stated the following:

"The court will rule, first of all, that you are not eligible for [treatment under the Act] based upon the conviction of -- well, you have two convictions here, the residential burglary and another felony conviction, that being robbery of a person 60 years of age or older."

The court's comments indicate that it believed defendant's convictions in this case for residential burglary and robbery precluded his eligibility for treatment under the Act, and the ...


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