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August 1, 1997


Appeal from the Circuit Court of the 10th Judicial Circuit, Tazewell County, Illinois. No. 96--CM--458. Honorable Thomas G. Ebel Judge, Presiding.

As Corrected August 22, 1997. Released for Publication September 18, 1997.

Present - Honorable Michael P. Mccuskey, Justice, Honorable William E. Holdridge, Justice, Honorable John F. Michela, Justice. Justice Holdridge delivered the opinion of the court. McCUSKEY and Michela, JJ., concurred.

The opinion of the court was delivered by: Holdridge

The Honorable Justice HOLDRIDGE delivered the opinion of the court:

Defendant, G. Wayne Davis, was charged by information with two counts of disorderly conduct (720 ILCS 5/26--1(a)(Michie 1994)), a Class C misdemeanor. Following a jury trial, defendant was found guilty of one count and acquitted on one count. By agreement of the parties, the matter proceeded immediately to sentencing and the trial court sentenced defendant to a $300 fine, ten days in the county jail, with no day-for-day good time credit, and one year probation. The trial court denied defendant's motion to stay sentence and remanded defendant immediately into the custody of the sheriff to serve the sentence. Defendant filed an immediate notice of appeal and an emergency motion for stay of execution of judgment. This court stayed the enforcement of five days of the ten day sentence.

On appeal, defendant alleges reversible error on the following issues: (1) he was not proven guilty beyond a reasonable doubt of disorderly conduct; (2) the trial court abused its discretion in sentencing him to serve time in the county jail; and (3) his right to due process was violated by the trial court's denial of his statutory right to credit on his jail sentence for good behavior. For the following reasons, we affirm defendant's conviction and sentence, and reverse the trial court's ruling denying defendant credit for good behavior.


This matter concerns a long running feud between two commuters, who despite their mutual animosity, both continued to travel the same route at the same time each morning on their way from their homes in Delavan, Illinois to their work in Peoria, Illinois.

At trial, the complainant, Beverly Larson, testified that beginning in October 1995 defendant began to "harass" her on her commute to work each morning by doing such things as tailgating her car with his, positioning his car in front of hers while travelling down a two-lane road and then slowing down so that she could not pass, and following her to work, even to the point of running a red light to keep up with her. On one occasion, she returned to her car after work to find a note on her windshield, written by the defendant, which criticized her driving habits.

As to Count I of the information, complainant testified that on the morning of January 19, 1996, she was travelling her usual route to work when she stopped to assist a stranded motorist whom she recognized as a friend. As complainant was getting in her car to continue on her way to work, she recognized defendant's car pass her travelling at about 60 m.p.h. within the flow of traffic. She waited until defendant had passed out of sight before she proceeded on her way. As she rounded a curve in the road a short distance from where she had stopped to help her friend, she discovered that defendant had "slowed way down" as if to wait for her to catch up with him.

Complainant quickly caught up with defendant, although she slowed her car so as to maintain approximately two car lengths between their cars. Soon both cars approached a controlled intersection. According to complainant's testimony:

"A. When we got to Route 9, there was a lot of traffic and I got stopped behind him at the stop sign. There's a median to the left and a right turn lane that goes to the right. There were cars in the right turn lane and [defendant] was in front of me and my vehicle was behind his and there was a car coming up behind me. He got out of his vehicle and came back to my car. ***"

"A. I locked my doors real quick and rolled my windows up. He said, 'I'm going to be down where you work today,' and I shrugged my shoulders like this. He said 'I want you to stop tailgating me and stop harassing me.' I cracked my window and said 'Just get back in your car and go to work.' I said, 'I'm not tailgating you.' I said 'get back in your car and go to work.' He said some other things, and I said, 'Don't ever leave a note on my car again.' He said, 'Lady, I can go where ever I want and do whatever I want.'"

According to complainant, defendant walked back to his car and drove away after she picked up her car Phone as if to place a call. Complainant further testified that defendant spoke in a loud voice, but was not yelling, that he used no obscenities, and that she could not recall him using ...

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