Appeal from the Circuit Court of the 12th Judicial Circuit Will County, Illinois Circuit No. 03-CF-755 The Honorable Richard Schoenstedt and Stephen D. White, Judges, Presiding.
The opinion of the court was delivered by: Justice McDADE
JUSTICE McDADE delivered the judgment of the court, with opinion.
Justice Lytton concurred in the judgment and opinion.
Presiding Justice Schmidt specially concurred, with opinion.
¶ 1 Cindy Sweeney, the defendant, pled guilty to driving while her license was suspended. 625 ILCS 5/6-303(d-1) (West 2004). The court imposed a 6-year term of imprisonment, but stayed the mittimus for 30-months and allowed the defendant to remain free on a recognizance bond. Over 45 months after the court imposed this sentence, it sua sponte vacated it and sentenced the defendant to a 30-month term of probation. Thereafter, the State filed a petition to revoke the defendant's probation. The court granted this petition and imposed a six-year term of imprisonment.
¶ 2 The defendant now appeals, contending that: (1) the original sentence whereby the court imposed a 6-year term of imprisonment, but stayed it for 30 months, was unauthorized, or, alternatively, the defendant had fully served this sentence at the time the court imposed the 30-month term of probation; (2) the proceeding on June 12, 2008, during which the court vacated the original sentence and imposed the 30-month term of probation was void because the defendant was not represented by counsel and the court did not obtain a waiver of the defendant's right to counsel; and (3) the trial court abused its discretion when it did not award the defendant credit for the time she spent on probation.
¶ 3 Taking the issues out of order, the defendant asserts and the State concedes that the proceeding whereby the court vacated the defendant's original sentence and imposed the 30-month term of probation was void. Because we agree, we vacate the term of probation the court imposed on June 12, 2008, the subsequent revocation of that probation, and that revocation as the basis for the sentence that resulted therefrom.
¶ 4 We further conclude that although the trial court had the proper authority to impose a 6-year term of imprisonment for the defendant's conviction for driving while her license was suspended, it did not have authority to stay the mittimus for over 45 months, thus rendering that portion of the sentence void. Because the stay was an essential part of the defendant's plea agreement, we vacate the entire sentence and allow the defendant to withdraw her guilty plea. We also conclude that the trial court did not abuse its discretion by refusing to grant the defendant credit for time she spent on probation or otherwise under the control of the trial court.
Therefore, we remand the cause to the trial court to permit the defendant to withdraw her guilty plea. If the defendant chooses to withdraw her guilty plea, the trial court is to vacate the defendant's conviction and proceed with trial. However, if the defendant persists in her plea of guilty, the trial court is to resentence the defendant according to the statutory guidelines.
¶ 6 The State charged the defendant with the Class 4 felony offense of driving while her license was suspended. 625 ILCS 5/6-303(d-1) (West 2004). The charge stemmed from an incident on May 29, 2003, where the defendant drove her vehicle at a time when her license had previously been suspended for driving under the influence.
¶ 7 The defendant appeared in court on August 24, 2004, and gave her consent for the court to engage in a conference with the State and her attorney pursuant to Illinois Supreme Court Rule 402 (eff. July 1, 1997). Thereafter, on August 26, 2004, the defendant pled guilty to driving while her license was suspended and indicated that she expected the court to impose the sentence that resulted from the Rule 402 conference. Specifically, defense counsel disclosed that pursuant to the Rule 402 conference, the court would sentence the defendant to an extended term of imprisonment of six years, with credit for time served. However, the court would stay enforcement of the sentence, during which time it would release the defendant on a personal recognizance bond and require her to report to a probation officer twice per week for drug testing. The court clarified that the sentence would be stayed for a period of 30 months, which was the maximum term of probation that the court could impose on the defendant. The parties also noted that they understood that if the defendant tested positive for drugs, possessed drugs or any other illegal substances, or drove a vehicle, the court would immediately issue the mittimus.
¶ 8 After the court ascertained that the defendant understood the proposed plea and sentence, and heard the factual basis for the offense, it accepted the plea, entered a conviction, and imposed the aforementioned sentence. On the written sentencing order, the court indicated that it imposed a six-year term of imprisonment and that the term of imprisonment was stayed, but it left blank the line indicating for how long the sentence was stayed. However, the court also entered a written order explaining the terms of the sentence, and this order indicated that the defendant's sentence was stayed for "up to 30 months." This order further indicated that defendant must appear before the court from time to time as directed by the court and set her initial reporting date as October 14, 2004.
¶ 9 At the October 14 hearing, the court permitted defense counsel to withdraw. The court also noted that all of the defendant's drug tests had been negative and reduced the frequency with which the defendant took these tests to a random basis, four or five times per month. The court informed the defendant that it "want[ed] to keep a relative short leash on [her]" and stated that if the defendant did not come in to perform the test when the probation officer called her, it would consider the test as a positive result.
¶ 10 The record indicates that the defendant regularly appeared in court from October 2004 to June 2008, during which time she had ultimately progressed on her drug problem to having random drug testing on an open basis as determined by her probation officer and the court. However, at a hearing on August 25, 2005, the State requested that the court issue the mittimus because the defendant had been charged with domestic battery for an altercation with her sister during which time she had been consuming alcohol. The ...