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People v. Dieu

July 31, 1998

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
TRAVIS L. DIEU, DEFENDANT-APPELLANT.



The opinion of the court was delivered by: Justice Knecht

IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

Appeal from Circuit Court of Vermilion County

No. 95CF481

Honorable Thomas J. Fahey, judge Presiding.

In January 1996, defendant, Travis L. Dieu, pleaded guilty to burglary (720 ILCS 5/19-1 (West 1994)). In February 1996, he was sentenced to 48 months' probation, including 60 days of periodic imprisonment in the Vermilion County work-release program. In November 1996, the court revoked defendant's probation, and in February 1997, he was sentenced to 62 months in prison with credit for 121 days served. Defendant appeals, arguing the trial court erred in determining his credit for time served. We agree and remand for issuance of a corrected order of judgment and sentence.

I. BACKGROUND

On October 5, 1995, defendant was arrested for residential burglary (720 ILCS 5/19-3(a) (West 1994)). He remained in the county jail until he posted bond on December 1, 1995--a period of 56 days. In January 1997, defendant pleaded guilty to burglary (720 ILCS 5/19-1 (West 1994)) in exchange for the State agreeing to dismiss four misdemeanor cases already pending against him. He also agreed to make restitution owed to the victims of his crimes.

In February 1996, the trial court sentenced defendant to 48 months' probation. His probation was contingent upon numerous conditions, including (1) paying restitution totaling $1,864, (2) paying court costs totaling $213, (3) abstaining from alcohol and illicit drugs, (4) taking random drug tests, (5) complying with curfew conditions, and (6) serving 60 days' periodic imprisonment in a work-release program. In March 1996, defendant began serving his term of periodic imprisonment.

On September 18, 1996, defendant was arrested for violating his probation. The State filed a petition to revoke his probation, alleging he (1) used cocaine once, (2) used cannabis on three separate occasions, and (3) failed to abide by his curfew conditions. He remained in jail until he posted bond on November 21, 1996--a period of 65 days.

In November 1996, the trial court conducted a hearing on the State's petition and defendant admitted violating his probation. At the February 1997 sentencing hearing, the court heard evidence in aggravation and mitigation of defendant's conduct. The court sentenced defendant to 62 months' imprisonment with the Illinois Department of Corrections and credited him with 121 days already served. The court did not consult with defense counsel before determining defendant's sentence credit.

Thereafter, defendant filed a motion to withdraw his admission and reconsider his sentence. Defendant alleged he did not understand the consequences of his admission and his sentence was excessive. The motion did not challenge the court's determination of his credit for time served. In March 1997, the court denied defendant's motion and this appeal followed.

II. ANALYSIS

On appeal, defendant asserts the court erred by failing to credit him with the 60 days of periodic imprisonment he served prior to his probation violation. See People v. Scheib, 76 Ill. 2d 244, 252, 390 N.E.2d 872, 875-76 (1979). Further, he contends his appeal has not been forfeited because he did not participate in the determination of his sentence credit or agree to the State's calculation of his credit. However, if the issue has been forfeited, defendant argues his counsel provided ineffective assistance, resulting in substantial prejudice. See Strickland v. Washington, 466 U.S. 668, 686, 80 L. Ed. 2d 674, 692-93, 104 S. Ct. 2052, 2063-64 (1984).

The State argues defendant is challenging the correctness of his sentence; therefore, this issue should have been included in his posttrial motion. See 730 ILCS 5/5-8-1(c) (West 1994). By failing to raise this issue before the trial court, the State argues defendant forfeited his right to appeal. See People v. Reed, 177 Ill. 2d 389, 390, 686 N.E.2d 584, 584 (1997). Additionally, the State asserts defendant was not ...


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