In proceedings following the revocation of defendant’s probation, the trial court clearly intended to establish a new restitution order, even though it left the portion of the sentencing order establishing restitution blank, and under those circumstances, the current restitution order would be deemed the same as the prior order; however, pursuant to Supreme Court Rule 615(b)(4), the portion of the restitution order that was not supported by an agreement to pay was vacated, and the requirement that defendant’s bond be applied to restitution first was held to be void, since section 5-5- 6(e) of the Unified Code of Corrections requires that defendant’s bond first be applied to court costs and fines.
Appeal from the Circuit Court of Peoria County, No. 07-CF-1510; the Hon. Stephen A. Kouri, Judge, presiding.
Sean Conley, of State Appellate Defender's Office, of Ottawa, for appellant.
Jerry Brady, State's Attorney, of Peoria (Terry A. Mertel and Dawn D. Duffy, both of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
Panel 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 Thereafter, his probation was revoked, and the trial court sentenced him to four years in prison and ordered that his bond money be applied first to restitution.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 Specifically, defendant contends that: (1) he was not under any obligation to pay restitution after his probation was revoked; (2) restitution on one count was not supported by a valid agreement to pay; and (3) the restitution statute does not authorize applying bond to restitution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, ...