{ "id": 3500691, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES HOLZHAUER, Defendant-Appellant", "name_abbreviation": "People v. Holzhauer", "decision_date": "1986-06-12", "docket_number": "No. 4\u201485\u20140745", "first_page": "153", "last_page": "156", "citations": [ { "type": "official", "cite": "144 Ill. App. 3d 153" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "111 Ill. 2d 593", "category": "reporters:state", "reporter": "Ill. 2d", "opinion_index": 0 }, { "cite": "489 N.E.2d 393", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "140 Ill. App. 3d 651", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3532725 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/ill-app-3d/140/0651-01" ] }, { "cite": "479 N.E.2d 328", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "133 Ill. App. 3d 613", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3528495 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/133/0613-01" ] }, { "cite": "466 N.E.2d 296", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "125 Ill. App. 3d 516", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3632157 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/ill-app-3d/125/0516-01" ] }, { "cite": "421 N.E.2d 968", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "pin_cites": [ { "page": "970-71" } ], "opinion_index": 0 }, { "cite": "96 Ill. App. 3d 634", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 12139194 ], "pin_cites": [ { "page": "636" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/96/0634-01" ] }, { "cite": "395 N.E.2d 408", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "76 Ill. App. 3d 957", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3279791 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/76/0957-01" ] }, { "cite": "475 N.E.2d 1018", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "131 Ill. App. 3d 466", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3439055 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/131/0466-01" ] }, { "cite": "468 N.E.2d 168", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "126 Ill. App. 3d 1066", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3596631 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/126/1066-01" ] } ], "analysis": { "cardinality": 422, "char_count": 7150, "ocr_confidence": 0.776, "pagerank": { "raw": 1.298413627333351e-07, "percentile": 0.6215704081589313 }, "sha256": "079aef1921ac27f6e54fade986eb9f0c24e65e15fb7853b89ce5eb2bb9eab234", "simhash": "1:b13ff0bea244bd6d", "word_count": 1210 }, "last_updated": "2023-07-14T20:09:36.612611+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES HOLZHAUER, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE GREEN\ndelivered the opinion of the court:\nOn November 3, 1980, defendant, James Holzhauer, entered a plea of guilty to the offense of aggravated battery in the circuit court of Livingston County. He was subsequently sentenced to 30 months\u2019 probation and ordered to pay a fine of $535, court costs, and restitution to the victim of $1,692.50. He was also ordered to serve a term of 109 days\u2019 imprisonment with credit for 109 days already served. On May 2, 1983, and May 13, 1985, petitions were filed to revoke defendant\u2019s probation for failure to pay restitution. In both cases, probation was revoked, and defendant was resentenced to probation and ordered to pay restitution.\nFinally, on September 30, 1985, a petition to revoke probation was filed alleging that defendant had violated the conditions of his probation by failing to return from work release on time and by refusing to submit to a breathalyzer or urine analysis upon request of court services. Following a hearing on the petition, the trial court found that defendant violated the conditions of his probation when he refused to submit to the breathalyzer but did not violate probation by returning late from his work release. Defendant was subsequently sentenced to 3 years and 218 days\u2019 imprisonment with credit for 126 days served in the county jail.\nOn appeal, defendant contends (1) the trial court abused its discretion in sentencing him to a term of imprisonment for failure to pay restitution in full; and (2) he is entitled to a $5 per day credit against his fine for each of the 126 days he spent in the county jail awaiting trial. We disagree.\nSection 5\u20146\u20144(e) of the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38, par. 1005\u20146\u20144(e)) provides that where the court has found the offender to have violated a condition of probation at any time prior to the expiration of the probation period, it may impose any other sentence that was available at the time of the initial sentencing. Aggravated battery is a Class 3 felony, and defendant could have been sentenced initially to a term of two to five years\u2019 imprisonment. Ill. Rev. Stat. 1983, ch. 38, par. 1005\u20148\u20141(a)(6).\nThe termination of probation is within the discretion of the trial court, and absent a showing that the decision to terminate was against the manifest weight of the evidence, that determination should not be overturned. (People v. Salamon (1984), 126 Ill. App. 3d 1066, 468 N.E.2d 168.) The State need only show, by a preponderance of the evidence, that a condition of probation has been violated. (People v. Drake (1985), 131 Ill. App. 3d 466, 475 N.E.2d 1018.) By the terms of the conditions of defendant\u2019s probation, he was required to submit to a breathalyzer test upon request of a proper official. The evidence was undisputed that defendant had refused to do so here.\nAt sentencing, the trial court placed substantial emphasis on defendant\u2019s failure to pay restitution and noted that his wife had, to a great extent, been responsible for what little restitution had been paid. Defendant contends, therefore, the court was sentencing him for his failure to pay restitution.\nThe sentence imposed following revocation of probation must be one that would have been appropriate for the original offense. However, numerous violations of probation may be considered as bearing on defendant\u2019s rehabilitative potential. (People v. Brogan (1979), 76 Ill. App. 3d 957, 395 N.E.2d 408.) The reference of the trial court to defendant\u2019s shortcomings in making restitution was a permissible consideration. At the times of the previous revocation proceedings, the trial court made determinations that defendant had violated the terms of his probation as a result of his failure to pay restitution. Those were final orders, and defendant did not appeal. Thus, he cannot now claim that he did not violate the terms of probation in the manner there found. This evidence, together with defendant\u2019s prior record, fully justified the sentence imposed by the trial court.\nDefendant next contends he is entitled to a credit of $5 per day to be applied against his fine for the 126 days he spent in the county jail awaiting trial in addition to the credit of 126 days against his sentence of 3 years and 218 days\u2019 imprisonment. The State maintains such a determination would give defendant \u201cdouble credit\u201d and should not be allowed.\nSection 110\u201414 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1983, ch. 38, par. 110\u201414) provides for a credit of $5 for each day incarcerated on a bailable offense by one who does not supply bail and against whom a fine has been levied on conviction for such offense.\nThe districts of the appellate court are split in their interpretations of this statute. The Fifth District noted that section 110\u201414 does not say \u201c \u2018against whom only a fine is levied\u2019 \u201d (emphasis added), nor does it exclude from its provisions defendants who have received credit against imprisonment under section 5\u20148\u20147 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005\u2014 8\u20147). (People v. Young (1981), 96 Ill. App. 3d 634, 636, 421 N.E.2d 968, 970-71.) The court concluded that there was nothing in the language of the statute or in the relevant case law to justify creating an exception for defendants who have received a credit in the form of reduced sentences of imprisonment. Young was followed in People v. Stevens (1984), 125 Ill. App. 3d 516, 466 N.E.2d 296, and People v. Smith (1985), 133 Ill. App. 3d 613, 479 N.E.2d 328.\nThe Second District has held, however, that a defendant is not entitled to a credit of $5 per day against a fine imposed as well as credit in the form of a reduced sentence of imprisonment. (People v. Love (1986), 140 Ill. App. 3d 651, 489 N.E.2d 393, appeal denied, (1986), 111 Ill. 2d 593.) There, the court indicated that the legislature could not have intended a \u201cdouble credit\u201d against both the f\u00edne and the imprisonment, because to do so would favor the class of nonbailed offenders over those who were able to post bail.\nWe agree with the Second District\u2019s reasoning. To allow the double credit would penalize a defendant who had been able to post bail. That defendant would be required, upon conviction, to complete his full sentence of imprisonment and pay his entire fine, while a defendant who was unable to post bail would be given credit against any sentence of imprisonment imposed as well as credit against his fine. We agree that the legislature could not have intended such disparate treatment.\nFor the foregoing reasons, the judgment of the trial court is affirmed.\nAffirmed.\nMcCULLOUGH, Ed., and MORTHLAND, J., concur.", "type": "majority", "author": "JUSTICE GREEN" } ], "attorneys": [ "Daniel D. Yuhas and Lawrence Bapst, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.", "Donald D. Bernardi, State\u2019s Attorney, of Pontiac (Kenneth R. Boyle, Robert J. Biderman, and Monroe D. McWard, all of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES HOLZHAUER, Defendant-Appellant.\nFourth District\nNo. 4\u201485\u20140745\nOpinion filed June 12, 1986.\nRehearing denied July 11, 1986.\nDaniel D. Yuhas and Lawrence Bapst, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nDonald D. Bernardi, State\u2019s Attorney, of Pontiac (Kenneth R. Boyle, Robert J. Biderman, and Monroe D. McWard, all of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." }, "file_name": "0153-01", "first_page_order": 175, "last_page_order": 178 }