Appeal from the Circuit Court of the 10th Judicial Circuit, Peoria County, Illinois, Appeal No. 3-11-0474 Circuit No. 07-CF-1510 Honorable Stephen A. Kouri, Judge, Presiding.
JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion. Justice Lytton concurred in the judgment and opinion. Presiding Justice Wright concurred in part and dissented in part, with opinion.
¶ 1 Defendant, Jarmarco Moore, pled guilty to two counts of burglary (720 ILCS 5/19-1(a) (West 2006)) and was sentenced to probation. Thereafter, his probation was revoked, and the trial court sentenced him to four years in prison and ordered that his bond money be applied first to restitution. Defendant appeals, arguing that the portion of the sentencing order applying his bond first to restitution is void. Specifically, defendant contends that: (1) he was not under any obligation to pay restitution after his probation was revoked; (2) restitution on one count was not supported by a valid agreement to pay; and (3) the restitution statute does not authorize applying bond to restitution before court costs. We vacate the portion of the sentencing order applying bond first to restitution, reduce defendant's restitution, and otherwise affirm defendant's conviction and sentence.
¶ 2 FACTS
¶ 3 Defendant was charged with four counts of burglary (720 ILCS 5/19-1(a) (West 2006)). Two of the counts related to defendant's actions against Azura Boutique and two related to his conduct toward Brom's Furs and Fashions. On April 4, 2008, defendant pled guilty to two counts of burglary against Azura Boutique and the State dropped the counts relating to Brom's Furs. Defendant's sentence included 180 days in jail, a 3-year term of probation, and an order for him to pay restitution in the amount of $517 to Azura Boutique and $2, 700 to Brom's Furs.
¶ 4 On March 29, 2011, the State filed a petition to revoke defendant's probation. The petition alleged four separate occasions where defendant had failed to report to the probation department and claimed that defendant had left the state without permission and had committed the offense of attempt to transport marijuana for sale while in Arizona. Defendant admitted the allegations in the petition, and the court revoked his probation.
¶ 5 On June 20, 2011, the circuit court held a new sentencing hearing. At the hearing, no evidence was presented. In pronouncing its sentence, the court discussed defendant's character and noted that he had not paid any of the restitution he had been ordered to pay as part of the original probation order. The court sentenced defendant to four years in prison. After the sentence was pronounced, the State asked the court if the bond could apply first to restitution. The court agreed and checked the box in the sentencing order which stated, "Bond to apply first to restitution." However, it left blank the section establishing restitution and did not check the box indicating restitution was ordered. Defendant appeals.
¶ 6 ANALYSIS
¶ 7 Defendant argues that the portion of his sentencing order applying his bond first to restitution is void because he was not under any obligation to pay restitution following the revocation of his probation and the restitution order was statutorily unauthorized. Initially, the State argues that defendant has forfeited review of this issue. However, it is well settled that a void order may be attacked at any time. People v. Gutierrez, 2012 IL 111590. We review the validity of a restitution order de novo. People v. Felton, 385 Ill.App.3d 802 (2008).
¶ 8 First, defendant contends that the trial court failed to enter a new restitution order following the revocation of his probation. When a defendant's probation is revoked, an entirely new sentence is imposed. Felton, 385 Ill.App.3d 802. Consequently, upon the revocation of probation, a defendant is no longer subject to the original conditions of probation, including an order to pay restitution. See People v. McNett, 361 Ill.App.3d 444 (2005).
¶ 9 Here, when defendant's probation was revoked, the original restitution order ceased to exist. See McNett, 361 Ill.App.3d 444. In resentencing defendant, the trial court left the portion of the sentencing order establishing restitution blank. However, restitution was addressed during the sentencing hearing when the trial court discussed defendant's character and at the conclusion, when the State asked the court to check the box in the sentencing order applying defendant's bond first to restitution, which the court did. Under these facts, we believe that the trial court did intend to establish a restitution order. Further, because the court alluded to the original restitution order during sentencing, we believe the current order is exactly the same as the order that existed prior to the revocation of defendant's probation.
¶ 10 Defendant argues that if the new restitution order contains the same terms as the original order, something we have concluded it does, that the portion granting restitution to Brom's Furs should be vacated because it was not supported by an agreement to pay. We agree that this portion of the restitution order is not supported by law. See People v. Owens, 323 Ill.App.3d 222 (2001) (generally, a defendant cannot be made to pay restitution for conduct not resulting in a conviction unless it is supported by an agreement to pay as part of a plea deal). Therefore, pursuant to our powers under Illinois Supreme Court Rule 615(b)(4), we reduce defendant's restitution to $517, payable in its entirety to Azura Boutique.
¶ 11 Defendant further contends that the section of the sentencing order applying bond first to restitution is void because the restitution statute does not allow the application of bond to restitution before court costs. The cardinal rule of statutory interpretation is to give effect to the intent of the legislature. Krautsack v. Anderson, 223 Ill.2d 541 (2006). To do so, we must give the language of the statute ...