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January 28, 1998


Appeal from the Circuit Court for the 14th Judicial Circuit Rock Island County, Illinois. No. 96--MR--240. Honorable Joseph F. Beatty, Judge, Presiding.

Present - Honorable William E. Holdridge, Justice, Honorable Peg Breslin, Justice, Honorable Tom M. Lytton, Justice. Justice Breslin delivered the opinion of the court. Lytton, J., concurs. Holdridge, J., dissents.

The opinion of the court was delivered by: Breslin

The Honorable Justice BRESLIN delivered the opinion of the court:

The plaintiff, Percy Johnson, pled guilty to multiple charges. He received 12 concurrent terms of imprisonment of varying lengths and one consecutive two-year prison term. The plaintiff was awarded credit for 165 days spent in jail prior to his sentencing. Subsequently, he brought a mandamus action against the defendants, Odie Washington (Director of the Illinois Department of Corrections) and Lisa Nordstrom (Record Office Supervisor of the East Moline Correctional Center). In this action, the plaintiff contended that he was entitled to an additional 165 days' credit against his consecutive sentence. The trial court granted the plaintiff's petition for mandamus. We find that for purposes of awarding credit for pre-sentence custody, the plaintiff's consecutive sentences must be viewed as a single "aggregate sentence." The plaintiff received 165 days of credit toward this aggregate sentence. Thus, he was not entitled to any further credit, and his petition for mandamus should have been denied. Consequently, we reverse the judgment of the trial court.

In November 1992, the circuit court of Cook County entered nine different sentencing orders against the plaintiff. In total, the plaintiff was convicted on eight counts of theft by deception (720 ILCS 5/16--1(a)(2) (West 1992)), three counts of aggravated false personation of a peace officer (720 ILCS 5/32--5.2 (West 1992)), one count of attempted theft by deception (720 TLCS 5/8--4(a), 16--1(a)(2) (West 1992)), and one count of unlawful use of a weapon by a felon (720 ILCS 5/24--1.1 (West 1992)). The sentences for all the convictions, with one exception, were to run concurrently. Those sentences ranged from 14 years to 5 years. The sole exception was a two-year prison term for theft by deception which the court ordered the plaintiff to serve consecutively to the other sentences. Each of the nine sentencing orders provided that the plaintiff should be given credit for 165 days of pre-sentence custody.

In November 1996, the plaintiff filed this action for mandamus. The trial court ruled that the plaintiff was entitled to 165 days' credit against his consecutive sentence because the sentencing order provided for that credit.

The sole issue on appeal is whether the trial court properly granted the plaintiff's petition for mandamus and awarded the plaintiff additional credit for pre-sentence custody.

The writ of mandamus is an extraordinary remedy which may be issued in the court's discretion. Fischer v. Brombolich, 207 Ill. App. 3d 1053, 566 N.E.2d 785, 152 Ill. Dec. 908 (1991). Mandamus may lie only when the plaintiff has a clear right to the relief sought, and the defendant has a clear duty to act and clear authority to comply with the writ. Orenic v. Illinois Labor Relations Board, 127 Ill. 2d 453, 537 N.E.2d 784, 130 Ill. Dec. 455 (1989).

Section 5--8--7 of the Unified Code of Corrections (Code) governs the calculation of an offender's term of imprisonment. 730 ILCS 5/5--8--7 (West 1992). It provides that the offender must be given credit for time spent in custody as a result of the offense for which the sentence is imposed. 730 ILCS 5/5--8--7(b) (West 1992).

Section 5--8--4(e) of the Code governs the calculation of consecutive sentences. 730 ILCS 5/5--8--4(e) (West 1992). It states that the Department of Corrections (Department) must treat the consecutive sentences as if they are a single term of imprisonment. 730 ILCS 5/5--8--4(e) (West 1992). The Department must add the consecutive terms together to reach the "aggregate sentence." See 730 ILCS 5/5--8--4(e) ((1), (3) (West 1992). The offender must be awarded credit against the aggregate sentence for "all time served *** since the commission of the *** offenses and as a consequence thereof ***." 730 ILCS 5/5--8--4(e)(4) (West 1992).

Since both sections 5--8--7(b) and 5--8--4(e)(4) require the Department to award credit for pre-sentence custody, it becomes our task to determine which section should be applied in a given case. To do so, we turn to the rules governing statutory construction.

One of the cardinal rules of statutory construction ordains that sections in pari materia should be considered with reference to one another so that the sections may be given harmonious effect. People v. Scheib, 76 Ill. 2d 244, 390 N.E.2d 872, 28 Ill. Dec. 513 (1979). It is also well settled that when both a specific statute and a general statute may be applied to a certain set of circumstances, the specific statute controls. People v. Urban, 196 Ill. App. 3d 310, 553 N.E.2d 740, 143 Ill. Dec. 33 (1990).

In light of these guidelines, we note that section 5--8--7(b) is silent as to when it should be applied. Section 5--8--4(e), however, specifically states that it applies when consecutive sentences have been imposed. Thus, it is clear that section 5--8--4(e) is the specific provision and section 5--8--7(b) is the general provision. It follows, then, that when section 5--8--4(e) is applicable--when consecutive sentences are at issue--section 5--8--4(e) controls the award of pre-sentence credit. At that point, section 5--8--7(b) becomes irrelevant.

This interpretation allows us to read sections 5--8--7(b) and 5--8--4(e) with reference to each other and give the sections harmonious effect. Section 5--8--7(b) continues to govern the award of credit for pre-sentence custody in all instances except when consecutive sentences have been ...

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