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People v. Lemons

February 22, 1999


The opinion of the court was delivered by: Presiding Justice Knecht


Appeal from Circuit Court of Pike County

No. 97CF55

Honorable Michael R. Roseberry, Judge Presiding.

Following a bench trial, defendant was convicted of aggravated battery and resisting a peace officer (720 ILCS 5/12-4(b)(8), 31-1 (West 1996)). He received an extended 10-year term of imprisonment for the aggravated battery and a concurrent 364-day sentence on the resisting conviction. On appeal, defendant contends the court erred in imposing an extended term under section 5-5-3.2(b)(1) of the Unified Code of Corrections (Code) (730 ILCS 5/5-5-3.2(b)(1) (West 1996)) because the prior conviction used to qualify defendant for the extended term was more than 10 years old.

The facts reveal defendant was convicted of burglary and sentenced to an initial term of 18 months' probation on February 26, 1985. A petition to revoke that probation was subsequently filed and probation was extended in January 1990. A second petition to revoke probation was filed in August 1991. A hearing on that petition was not held, however, until October 31, 1996, at which time probation was revoked and defendant was sentenced to 54 months in the Department of Corrections. On August 2, 1997, five days after defendant's release from the Department of Corrections, he committed the instant offenses for which he stands convicted.

During the more than five-year lapse between the filing of the second petition to revoke the burglary probation and his sentence to the Department of Corrections upon revocation of probation, defendant was absent from the State of Illinois. The presentence investigation report indicates defendant was arrested and convicted of a variety of charges in other states during these years.

Section 5-5-3.2(b)(1) of the Code permits the imposition of an extended-term sentence:

"When a defendant is convicted of any felony, after having been previously convicted in Illinois or any other jurisdiction of the same or greater class felony, when such conviction has occurred within 10 years after the previous conviction, excluding time spent in custody ." 730 ILCS 5/5-5-3.2(b)(1) (West 1996).

Defendant contends his February 1985 sentence to probation, excluding time spent in custody, occurred more than 10 years prior to his current conviction and, for that reason, does not qualify him for an extended-term sentence. The State responds that the relevant sentencing date is October 1996, well within the 10-year period, when defendant's probation was revoked and he was sentenced to the Department of Corrections.

In People v. Lewis, 211 Ill. App. 3d 276, 281, 569 N.E.2d 1221, 1225 (1991), this court held that under section 5-5-3.2(b)(1) of the Code, the 10-year period runs from conviction to conviction and the date of conviction is the date of entry of the sentencing order. See also People v. Robinson, 91 Ill. App. 3d 1128, 1130, 414 N.E.2d 1335, 1336 (1980), aff'd, 89 Ill. 2d 469, 433 N.E.2d 674 (1982). The question before us is whether the date of the first sentence or the date of the last sentence for defendant's burglary conviction should be used to measure the commencement of the 10-year period. There is no controlling precedent in Illinois.

Defendant urges this court to read the statute literally and find that the date of the initial sentence controls because all subsequent modifications of the original probation order are "resentences" for which defendant was not "reconvicted." The State responds defendant's argument would circumvent the policy considerations embodied in the extended-term statute and lead to absurd results. We agree with the State.

In Lewis, defendant was initially convicted in 1979 in a federal court and sentenced to imprisonment. The case was reversed and remanded on appeal and, following retrial, defendant was again convicted and resentenced in 1981. Defendant's 1990 conviction resulted in an extended-term sentence. Defendant in Lewis argued his original conviction was outside the 10-year period and use of his 1981 conviction resulted in a more severe penalty due to his legitimate use of the appellate process and his success in having the original conviction overturned. This court disagreed, concluding this was simply a collateral effect of his appeal and was not a situation in which a defendant was more vindictively penalized by a sentencing court for successfully appealing.

Defendant maintains, nevertheless, that in the case of probation revocation, his original conviction has never been overturned. This ignores the fact, however, that once probation has been revoked the original sentence no longer exists, and the court is free to impose any sentence it could have originally imposed. People v. Miller, 109 Ill. App. 3d 255, 256-57, 440 N.E.2d 409, 410 (1982). It would be incongru-ous to suggest that a probationer who commits subsequent illegal acts or violates the terms of his probation justifying its revocation would be in a better position than a defendant ...

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