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People v. Gitchel

September 12, 2000

THE PEOPLE OF THE STATE OF ILLINOIS,
PLAINTIFF-APPELLEE,
V.
JERRY A. GITCHEL,
DEFENDANT-APPELLANT.



Appeal from Circuit Court of Douglas County No. 98CF14 Honorable Frank W. Lincoln, Judge Presiding.

The opinion of the court was delivered by: Justice Myerscough

In February 1998, defendant pleaded guilty to one count of burglary (720 ILCS 5/19-1 (West 1998)), and the trial court sentenced him to 12 months' probation with 10 weekends of periodic imprisonment and fined him $300. In February 1999, the court revoked defendant's probation, and in June 1999, the court resentenced him to 3 years' imprisonment with 30 days' credit for time served in the county jail as part of his probation sentence. Defendant appeals, contending that (1) he is entitled to (a) an additional 9 days' sentence credit for time spent in jail awaiting sentencing and (b) a corresponding $45 credit against his fine; and (2) the case should be remanded for a hearing on his post-sentencing motion, which was filed on July 6, 1999, simultaneously with his notice of appeal, but which the trial court did not consider. We affirm as modified and remand with directions.

I. PERIODIC IMPRISONMENT EQUATES TO SENTENCE CREDIT FOR DURATION OF ITS TERM

The record reflects, and the State concedes, defendant was incarcerated for 39 days prior to sentencing on revocation of probation, but the trial court credited him with only the last 30 days. However, where a defendant serves jail time on weekends under a sentence of periodic imprisonment (730 ILCS 5/5-7-1 (West 1998)), he is entitled to credit for all the days during that period, and not just for time actually spent in confinement. People v. Scheib, 76 Ill. 2d 244, 254-55, 390 N.E.2d 872, 876-77 (1979); People v. Hutchcraft, 215 Ill. App. 3d 533, 539, 574 N.E.2d 1337, 1340-41 (1991). The governing statutory provisions are explicit. Section 5-7-1(d) of the Unified Code of Corrections (Unified Code) (730 ILCS 5/5-7-1(d) (West 1998)) provides: "The term of the sentence shall be calculated upon the basis of the duration of its term rather than upon the basis of the actual days spent in confinement." Section 5-7-2(c) of the Unified Code states: "That part of the term under paragraph (d) of [s]section 5-7-1 which has been served under the sentence of periodic imprisonment shall be credited against a sentence of imprisonment." 730 ILCS 5/5-7-2(c) (West 1998). Sentence credit is generally considered under section 5-8-7(b) of the Unified Code (730 ILCS 5/5-8-7(b) (West 1998) ("shall be given credit *** for time spent in custody as a result of the offense for which the sentence was imposed")); crediting for periodic imprisonment is an exception, however, more specifically addressed by the aforementioned sections, which control as to the duration of its term.

Counting from February 27, 1998, through May 3, 1998, the last day of 10 weekends of periodic imprisonment, plus 9 days served prior to that, yields 75 days of credit. Accordingly, defendant is entitled to an additional 45 days of sentence credit. We note that the form judgment of sentence used here may contribute to the problem, as item C states "The defendant is entitled to credit for time actually served in custody of ___ days." This form could be updated to provide, for example, as follows:

C.(1) The defendant is entitled to time served on periodic imprisonment for the duration of its term from ___ to ___, for a total of ___ days;

(2) the defendant is entitled to credit for time served awaiting sentence on a bailable offense of ___ days; and a corresponding credit against $___ fine of $___ ($5/day); and

(3) the defendant is entitled to credit for other time actually served in custody of ___ days.

II. CREDIT AGAINST FINE FOR TIME AWAITING SENTENCE FOR BAILABLE OFFENSE

Defendant is further entitled to a corresponding $45 credit against the fine imposed for 9 days served awaiting sentence on the bailable offense of burglary. People v. Woodard, 175 Ill. 2d 435, 453-57, 677 N.E.2d 935, 944-46 (1997).

III. NO REMAND FOR HEARING ON POSTTRIAL MOTION FILED WITH NOTICE OF APPEAL

Finally, defendant contends that the case should be remanded for a hearing on his post-sentencing motion to withdraw his plea in which he inartfully alleged he received ineffective assistance of counsel that resulted in his admission to the allegations of the petition to revoke probation. We disagree. In People v. Bounds, 182 Ill. 2d 1, 3, 694 N.E.2d 560, 561 (1998), the supreme court held that the jurisdiction of the appellate court attaches instanter when a defendant simultaneously files a notice of appeal and a post-sentencing motion. Since the trial court was without jurisdiction to consider the post-sentencing motion, it is rendered, in effect, a nullity. It necessarily follows that such a motion does not reside in legal limbo only to be resurrected at the conclusion of appellate review. If the trial court was without jurisdiction to consider the motion when it was filed, it is without jurisdiction to consider it now.

Before concluding, we note that the Second District Appellate Court recently refused to apply Bounds in a case where defendant filed a notice of appeal five days before filing a motion to reconsider sentence. People v. Clark, 314 Ill. App. 3d 181, 182-84, ___ N.E.2d ___, ___ (2000). In doing so, the court reasoned that (1) Bounds involved a post-conviction appeal rather than a direct appeal following conviction, (2) the motion and the notice of appeal were not filed simultaneously, and (3) the substance of the motion involved a challenge to defendant's sentence, which was governed by section 5-8-1(c) of the Unified Code (730 ILCS 5/5-8-1(c) (West 1998)), which provides:

"If a motion filed pursuant to this subsection [to reconsider sentence] is timely filed within 30 days after the sentence is imposed, then for purposes of perfecting an appeal, a final judgment shall not be considered to have been entered until the motion to reduce a sentence has been ...


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