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09/11/95 PEOPLE STATE ILLINOIS v. MERLIN WELTY

September 11, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
MERLIN WELTY, JR., DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Lake County. No. 92-CF-2734. Honorable Christopher C. Starck, Judge, Presiding.

The Honorable Justice Inglis delivered the opinion of the court: McLAREN, P.j., and Rathje, J., concur.

The opinion of the court was delivered by: Inglis

The Honorable Justice INGLIS delivered the opinion of the court:

Following a bench trial which ended on February 9, 1993, defendant, Merlin Welty, Jr., was convicted of three counts of aggravated criminal sexual abuse (Ill. Rev. Stat. 1989, ch. 38, par. 12-16(c)(1)(i) (now 720 ILCS 5/12-16(c)(1)(i) (West 1992))). On April 2, 1993, the trial court sentenced defendant to 48 months' probation conditioned on serving 12 months' periodic imprisonment, during which time he was initially to be released only for counseling; he was also ordered to pay a $300 fine. The court denied day-for-day credit for the time defendant had already been confined in the county jail. The court later denied defendant's motions to modify his sentence and to reconsider. Defendant filed this appeal on February 10, 1994, challenging only the propriety of the sentence. We reverse the sentencing order to the extent that it is now erroneous and remand the cause for the entry of a corrected final sentencing order; we affirm the court's judgment in all other respects.

Defendant argues first that the trial court erred in denying him day-for-day credit for time previously spent in jail against his sentence of periodic imprisonment (see Ill. Rev. Stat. 1989, ch. 38, par. 1005-8-7(b) (now 730 ILCS 5/5-8-7(b)(West 1994))). In seeking alternative relief, he also argues that his sentence was improper where he only spent some six hours out of confinement during the first 90 days of his term and he was confined for more than 90 days. According to defendant, the court, in effect, incorrectly sentenced him to more than 90 days "straight" imprisonment because the Unified Code of Corrections (Code) prohibits a court from imposing a sentence of periodic imprisonment in conjunction with a sentence of imprisonment in excess of 90 days (see Ill. Rev. Stat. 1989, ch. 38, par. 1005-7-1(c) (now 730 ILCS 5/5-7-1(c) (West 1992))). On this basis, defendant seeks the vacatur of any remaining sentence of periodic imprisonment. In his alternative argument, defendant asserts that the court erred by failing to specify the days or parts of days that defendant was to be confined in periodic imprisonment. See Ill. Rev. Stat. 1989, ch. 38, par. 1005-7-1(e) (now 730 ILCS 5/5-7-1(e)(West 1992)); People v. Chernetti (1994), 257 Ill. App. 3d 742, 746, 195 Ill. Dec. 921, 629 N.E.2d 229 (cause remanded for court to specify conditions of periodic imprisonment).

We have not been made aware of any clear and controlling authority in this jurisdiction precisely addressing the first issue raised by defendant. We believe that the trial court erred in not giving defendant day-for-day credit for the time served in confinement prior to sentencing against the time to be served in periodic imprisonment. According to defendant's present calculations, he was confined to jail for a total of 78 days from the date of arrest to and including the day of sentencing.

The record indicates that defendant was arrested on November 6, 1992. He was released only after posting a cash bond on November 30, 1992. After defendant was convicted on February 9, 1993, the court revoked his bond and remanded him to the county jail the same day. Defendant was sentenced on April 2, 1993.

On July 23, 1993, defendant filed a "Motion for Release," alleging that he had been released for counseling for only a total of six hours from "periodic" imprisonment since his sentencing on April 2, 1993, and that he was in effect serving a sentence of "straight" imprisonment rather than periodic imprisonment--particularly where the court did not specify the dates and times of release and where he was not being given credit for time previously spent in jail. He claimed to have already served the full term allowed by statute.

On August 2, 1993, the trial court transferred defendant instanter into the county work release program for the remainder of his term of periodic imprisonment; his motion for release was otherwise denied. On January 14, 1994, defendant filed a "Motion to Modify" probation, arguing that he was entitled to day-for-day credit of 76 days for time spent in custody prior to sentencing and for a $5 per day credit against his fine. On that date, Judge Michael Fritz granted defendant a furlough from custody pending a hearing on the motion.

On February 4, 1994, Judge Christopher C. Starck heard defendant's motion to grant credit for time served, but concluded that there was no authority requiring that credit be given against periodic imprisonment and denied the motion. Defendant's furlough was continued to February 7, 1994, when he was to return to work release. On February 10, 1994, defendant filed a motion to reconsider which the court denied. His motion to stay the remainder of his term of periodic imprisonment was also denied. On the same date, defendant filed his notice of appeal. On March 1, 1994, this court stayed the sentence pending disposition of the appeal.

We consider whether a defendant who spends time in custody prior to trial or sentencing as a result of the offense for which the sentence is imposed is entitled to day-for-day credit against a sentence of periodic imprisonment in accordance with the general statutory provision governing the calculation of the term of a sentence. Section 5-8-7(b) of the Code states in pertinent part:

"(b) The offender shall be given credit on the determinate sentence or maximum term and the minimum period of imprisonment for time spent in custody as a result of the offense for which the sentence was imposed, at the rate specified in Section 3-6-3 of this Code. The trial court may give credit to the defendant for time spent in home detention." (Emphasis added.) Ill. Rev. Stat. 1989, ch. 38, par. 1005-8-7-(b) (now 730 ILCS 5/5-8-7(b)(West 1994)).

Pursuant to the above section, a defendant ordinarily receives day-for-day credit for time previously served in custody. "The purpose of the credit-against-sentence provision is to ensure that defendants do not ultimately remain incarcerated for periods in excess of their eventual sentences." ( People v. Ramos (1990), 138 Ill. 2d 152, 159, 149 Ill. Dec. 273, 561 N.E.2d 643.) This credit provision is mandatory, and its objective is to account for all the time served in confinement for a particular offense. ( People v. Scheib (1979), 76 Ill. 2d 244, 252, 28 Ill. Dec. 513, 390 N.E.2d 872.) This type of provision is also intended to prevent the State from depriving a defendant of credit for jail time through technical evasions such as by dropping an initial charge and recharging a defendant with another crime with the intent of denying credit for time spent in jail on the first charge. People v. Townsend (1991), 209 Ill. App. 3d 987, 989-90, 154 Ill. Dec. 725, 568 N.E.2d 946; see Ill. Rev. Stat. 1989, ch. 38, par. 1005-8-7(c) (now 730 ILCS 5/5-8-7(c)(West 1994)).

In interpreting section 5-8-7(b) of the Code, our supreme court has pointed out that a construction of the statute is to be avoided if it would raise legitimate doubts as to the constitutional validity of the statute. See Scheib, 76 Ill. 2d at 252-53 (avoiding construction vulnerable to double jeopardy claims where the failure to give credit would otherwise result in multiple punishments for the same offense or punishment would exceed penalty provided by statute); see also State v. Richards (Utah 1987), 740 P.2d 1314 (failure to grant ...


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