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04/18/95 PEOPLE STATE ILLINOIS v. HILARION A.

April 18, 1995

PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
HILARION A. GRANADOS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of the 14th Judicial Circuit, Whiteside County, Illinois. No. 90 CF 148. Honorable Robert W. Castendyck, Judge Presiding.

Released for Publication May 18, 1995.

Present - Honorable Allan L. Stouder, Presiding Justice. Honorable Tom M. Lytton, Justice. Honorable Michael P. Mccuskey, Justice. Justice McCUSKEY delivered the opinion of the court: Stouder, P. J., and Lytton, J., concur.

The opinion of the court was delivered by: Mccuskey

The Honorable Justice McCUSKEY delivered the opinion of the court:

The defendant, Hilarion Granados, pleaded guilty to two Class 4 felonies, driving while his driver's license was revoked (DWR) (Ill. Rev. Stat. 1991, ch. 95 1/2, par. 6-303(d)) and driving under the influence of alcohol (DUI) (Ill. Rev. Stat. 1991, ch. 95 1/2, par. 11-501(d)(1)). He was sentenced to a term of 18 months' imprisonment for DWR and a term of 30 months' probation for DUI. The defendant served his sentence of imprisonment for DWR. More than one year later, the defendant admitted violating the terms of his probation. He was then sentenced to a term of three years' imprisonment for DUI. The defendant was allowed to file a late notice of appeal.

The sole issue raised by the defendant is whether he is entitled to 94 days credit against his three-year sentence for DUI for the time he spent serving his sentence for DWR. We conclude that the defendant is not entitled to credit for time served as a result of his DWR conviction. Accordingly, we affirm the judgment of the trial court.

On May 26, 1990, the defendant was arrested for DWR and DUI. The defendant had an extensive history of driving offenses, including two prior DUI's. Consequently, both offenses were charged as Class 4 felonies. The defendant pleaded guilty to both offenses. On December 21, 1990, the defendant was sentenced to serve a term of 18 months in the Department of Corrections (DOC) for the DWR conviction. He was also sentenced to a term of 30 months' probation for the DUI conviction. As a condition of his probation, the defendant was ordered to pay $4950 in fines and $523 in costs. He was also ordered to complete an inpatient alcohol treatment program and satisfactorily complete any recommended aftercare program. After the defendant completed inpatient treatment, he entered the DOC on February 6, 1991, to serve the sentence imposed for DWR. He was released by the DOC on May 10, 1991.

On May 5, 1992, the State filed a petition to revoke the defendant's probation for his DUI conviction. The petition alleged that the defendant violated the terms of his probation because he failed to pay the fines and costs ordered by the circuit court. Also, the petition alleged that the defendant failed to participate in and complete the aftercare program recommended by the hospital following his inpatient treatment. The petition was later amended to state that the defendant also violated his probation when he committed the offenses of DWR and DUI on June 12, 1992. On September 1, 1992, the defendant admitted violating the terms of his probation.

On October 16, 1992, the trial court sentenced the defendant to three years in the DOC for DUI. The defendant was given 19 days credit for time served in the Whiteside County jail. On April 13, 1993, this court allowed the motion of the appellate defender to file a late notice of appeal in this case.

The defendant's sole argument on appeal is that he is entitled to an additional 94 days credit against his three-year sentence for the time he spent in the DOC from February 6, 1991, to May 10, 1991. The defendant does not dispute that the 94 days were served as a result of his conviction of DWR. He nevertheless contends that the 94 days should be credited toward his three-year sentence for DUI. We disagree.

Section 5-8-7(b) of the Unified Code of Corrections (Code) provides that a defendant shall be given credit on his sentence "for time spent in custody as a result of the offense for which the sentence was imposed. " (Emphasis added.) (Ill. Rev. Stat. 1991, ch. 38, par. 1005-8-7(b).) Accordingly, our supreme court has held that a defendant sentenced following the revocation of his probation must be given credit for all time spent in custody for that offense. ( People v. Scheib (1979), 76 Ill. 2d 244, 250-51, 390 N.E.2d 872, 875, 28 Ill. Dec. 513; see also People v. Durk (1990), 195 Ill. App. 3d 335, 338, 552 N.E.2d 278, 280, 141 Ill. Dec. 910; People v. Holt (1986), 151 Ill. App. 3d 337, 340, 502 N.E.2d 767, 769, 104 Ill. Dec. 270.) However, by its plain language, "section 5-8-7(b) allows sentence credit for custody resulting only from the offense at hand." (Emphasis added.) People v. Nicholson (1991), 213 Ill. App. 3d 765, 768, 572 N.E.2d 1188, 1190, 157 Ill. Dec. 724; see also People v. Hughes (1988), 167 Ill. App. 3d 265, 269, 521 N.E.2d 240, 243, 118 Ill. Dec. 172.

The defendant contends that he spent 94 days in custody following the imposition of his sentence of probation and, based upon Scheib, should be given credit for those days. This court addressed the issue raised by the defendant in People v. Wadelton (1980), 82 Ill. App. 3d 684, 402 N.E.2d 932, 37 Ill. Dec. 930. In Wadelton, the defendant pleaded guilty to the offenses of burglary and misdemeanor theft. He was sentenced to a term of 314 days' imprisonment for the theft conviction and 3 years' probation for the burglary conviction. After the defendant served his term of imprisonment for theft, his probation for burglary was revoked. The defendant was then sentenced to a term of three years' imprisonment for burglary. On appeal, the defendant argued that he was entitled to credit against the three-year prison term for the time he spent in custody for the theft conviction.

In Wadelton, we determined that the defendant was not entitled to credit for the time he spent in custody as a result of the theft conviction. We stated that "the statute is very clear that unless the period of imprisonment resulted from the offense for which the sentence was imposed, no credit need be given." Wadelton, 82 Ill. App. 3d 684, 688, 402 N.E.2d 932, 935, 37 Ill. Dec. 930.

In this case, the previous time the defendant spent in custody resulted from another offense, DWR. Consequently, based upon Wadelton, the defendant is clearly not ...


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