Appeal from Circuit Court of Vermilion County Nos. 96CF198 98CF381 99CF422 Honorable Claudia S. Anderson, Judge Presiding.
The opinion of the court was delivered by: Justice Steigmann
This case requires this court, in part, to determine whether allegedly improper probationary conditions may be challenged as void years later in an appeal from the revocation of a defendant's probation. On the facts of this case, we hold they may not.
In September 1996, defendant, Eugene D. Davis, pleaded guilty in case No. 96-CF-198 to delivery of a controlled substance on public housing property (a Class 1 felony) (720 ILCS 570/401(d), 407(b)(2) (West 1996)), and the trial court sentenced him to 48 months' probation, subject to various conditions, including that defendant serve 354 days of periodic imprisonment with work release.
In July 1998, the State charged defendant in case No. 98-CF-381 with (1) one count of possession of a controlled substance (720 ILCS 570/402(c) (West 1998)), (2) two counts of criminal trespass to State-supported property (720 ILCS 5/21-5 (West 1998)), and (3) one count of violating an order of protection (720 ILCS 5/12-30 (West 1998)).
In July 1999, the State filed a petition to revoke defendant's probation in case No. 96-CF-198, alleging that he failed to (1) report to his probation officer between February 1999 and June 1999 and (2) pay his monthly probation service fee.
In September 1999, the State charged defendant in case No. 98-CF-422 with retail theft (subsequent offense) (720 ILCS 5/16A-3(a) (West 1998)).
In October 1999, (1) a jury convicted defendant of possession of a controlled substance (720 ILCS 570/402(c) (West 1998)) in case No. 98-CF-381, and (2) the trial court found that defendant had violated his probation in case No. 96-CF-198 but reserved ruling on whether to revoke probation until the sentencing hearing. In December 1999, defendant pleaded guilty to retail theft in case No. 99-CF-422.
Later in December 1999, the trial court conducted a sentencing hearing on case Nos. 96-CF-198, 98-CF-381, and 99-CF-422. At the conclusion of that hearing, the court sentenced defendant as follows: (1) 10 years in prison (with credit for 99 days served) for delivery of a controlled substance on public housing property (720 ILCS 570/401(d), 407(b)(2) (West 1996)) (case No. 96-CF-198); (2) 6 years in prison (with credit for 33 days served) for possession of a controlled substance (720 ILCS 570/402(c) (West 1998)) (case No. 98-CF-381); and (3) 6 years in prison (with credit for 76 days served) for retail theft (720 ILCS 5/16A-3(a) (West 1998)) (case No. 99-CF-422). The court ordered all defendant's sentences to run concurrently.
Defendant appeals, arguing that (1) certain provisions of the trial court's September 1996 periodic imprisonment order are void; (2) the court abused its discretion during defendant's October 1999 jury trial by allowing the State to choose which of defendant's prior convictions would be admitted for impeachment purposes; (3) cumulative errors deprived him of a fair trial; and (4) he is entitled to two additional days of credit against his sentence for time served. We affirm defendant's convictions and sentences as modified but remand for correction of the sentencing order.
II. DEFENDANT'S APPEAL IN CASE NO. 96-CF-198
As previously stated, in September 1996, the trial court sentenced defendant to 48 months' probation. As a condition of probation, the court also ordered that he serve 354 days of periodic imprisonment with work release. Pursuant to the court's order encaptioned "Periodic Imprisonment Order of Distribution of Employment Compensation," the Vermilion County probation department was directed to collect all compensation earned by defendant during the term of his periodic imprisonment and distribute those funds as follows:
"(a) To [Vermilion County] the sum of $5.00 for each day
or partial day of incarceration.
(b) To the defendant for necessary travel and incidental
expenses. Disbursement shall be made after each pay interval
in an amount requested by the defendant and approved by the
(c) To the dependents of the offender in an amount
requested by the defendant and approved by the probation
(d) To apply toward fines, costs, fees, and restitution
as ordered by the [c]court.
(e) To the offender at the completion of his term of
sentence any undistributed balance."
Defendant argues that three of the five wage distribution provisions set forth in the trial court's order are void. Specifically, he contends as follows: (1) paragraph (b) is void because section 5-7-6(a) of the Unified Code of Corrections (Unified Code) (730 ILCS 5/5-7-6(a) (West 1996)) authorizes the withholding of income for travel expenses only when those expenses are incurred by the administrator of the offender's imprisonment; (2) paragraph (d) is void because it allows fines, costs, fees, and restitution to be taken out of defendant's paycheck without any of the "limits of process" required by the Code of Civil Procedure (Code) (735 ILCS 5/12-801 through 12-819 (West 1996)); and (3) paragraph (e) is void because it allows the probation department to keep earnings not otherwise used until defendant completes his sentence and, thus, (a) is not authorized by section 5-7-6(a) of the Unified Code (730 ILCS 5/5-7-6(a) (West 1996)), (b) violates the Code, and (c) is not consistent with section 3-13-6 of the Unified Code (730 ILCS 5/3-13-6 (West 1996)).
Defendant concedes that he neither (1) raised a timely objection to the trial court's 1996 periodic imprisonment order nor (2) directly appealed that order. Nevertheless, he contends that because these provisions of the court's order are void, they may be attacked at any time.
When a defendant does not file a timely notice of appeal from an order placing him on probation, this court lacks jurisdiction to consider errors in the underlying conviction "unless such errors render the conviction void." People v. Arnold, 323 Ill. App. 3d 102, 104, 751 N.E.2d 573, 575 (2001). In People v. Johnson, 327 Ill. App. 3d 252, 257, 762 N.E.2d 1180, 1184-85 (2002), this court held that an erroneously imposed ...