{
  "id": 2519718,
  "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT F. EMERY, Defendant-Appellant",
  "name_abbreviation": "People v. Emery",
  "decision_date": "1989-10-26",
  "docket_number": "No. 4\u201489\u20140042",
  "first_page": "171",
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    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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      "cite": "149 Ill. App. 3d 425",
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    {
      "cite": "160 Ill. App. 3d 491",
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      "cite": "412 N.E.2d 541",
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      "reporter": "N.E.2d",
      "year": 1987,
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    {
      "cite": "82 Ill. 2d 268",
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  "last_updated": "2023-07-14T21:35:40.569733+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [],
    "parties": [
      "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT F. EMERY, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "JUSTICE STEIGMANN\ndelivered the opinion of the court:\nAfter a jury trial in Macon County, defendant, Robert E Emery, was convicted in absentia of unlawful possession of a controlled substance (Ill. Rev. Stat. 1987, ch. 56V2, par. 1402(b)) and unlawful possession of a controlled substance (less than one gram of a substance containing cocaine) with intent to deliver (Ill. Rev. Stat. 1987, ch. 56V2, par. 1401(c)). The court entered judgment on only the conviction of unlawful possession of a controlled substance with intent to deliver, and the defendant was sentenced in absentia to five years\u2019 imprisonment. Defendant appeals, arguing that (1) the sentence imposed was excessive and (2) he is entitled to credit for time served of $5 a day against the $60 fine imposed upon him.\nWe disagree and affirm.\nDefendant was convicted of a Class 2 felony. He was eligible to be sentenced to probation or, in the trial judge\u2019s discretion, to a term of imprisonment of not less than three years nor more than seven years. Since the defendant at the time of his conviction was already on felony probation for forgery and had skipped out on his obligation to appear at trial, he was a rather unlikely candidate for further probation. Accordingly, defendant does not argue on appeal that he should have been sentenced to probation; instead, he argues that the court should have imposed the minimum sentence of three years.\nThe gist of defendant\u2019s appeal is that his criminal behavior in this case was \u201ccompletely non-violent,\u201d and that even though he had had several misdemeanor and traffic convictions, \u201cnone of these offenses indicated that the defendant was a dangerous individual.\u201d Based upon these characterizations, we are invited to second-guess the trial court and reduce the defendant\u2019s sentence to three years\u2019 imprisonment, which, defendant claims, \u201cwould adequately reflect the nature of this crime.\u201d We emphatically decline.\nThe record shows that the trial judge carefully considered the nature and circumstances of the offense as well as the history, character, and condition of the offender. The sentence imposed was within statutory limits, and we find no abuse of discretion. See People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541; People v. Reid (1987), 160 Ill. App. 3d 491, 513 N.E.2d 517.\nThe trial court imposed a street value fine of $60 (Ill. Rev. Stat. 1987, ch. 38, par. 1005 \u2014 9\u20141.1). Citing section 110 \u2014 14 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 110 \u2014 14) and People v. Joseph (1988), 176 Ill. App. 3d 636, 531 N.E.2d 432, defendant argues that he is entitled to a $5-a-day credit against this $60 fine for the 46 days he spent in jail on this bailable offense. Section 110 \u2014 14 of the Code provides:\n\u201cAny person incarcerated on a bailable offense who does not supply bail and against whom a fine is levied on conviction of such offense shall be allowed a credit of $5 for each day so incarcerated upon application of the defendant. The clerk of the court shall notify the defendant in writing of this provision of the Act at the time he is convicted. However, in no case shall the amount so allowed or credited exceed the amount of the fine.\u201d Ill. Rev. Stat. 1987, ch. 38, par. 110 \u2014 14.\nNormally, a defendant\u2019s failure to apply for credit will not preclude application of this statute upon appeal where, as here, the record fails to indicate that the defendant was informed by the circuit clerk of his entitlement. (People v. Bratcher (1986), 149 Ill. App. 3d 425, 500 N.E.2d 954.) However, this is not the normal case. Here the defendant was tried in absentia, and giving him the benefits of this statute would be contrary to legislative intent.\nIn 1977, the Illinois General Assembly amended section 110 \u2014 14 in two significant ways: (1) the clerk of the court was required to notify the defendant in writing of the provisions of that section at the time he is convicted; and (2) the defendant is entitled to the benefits of that statutory provision only \u201cupon application of the defendant.\u201d (Pub. Act 80 \u2014 666, eff. Oct. 1, 1977 (1977 Ill. Laws 2036) (amending Ill. Rev. Stat. 1975, ch. 38, par. 110 \u2014 14).) The clear purpose of this amendment was to put the defendant on notice of the statutory benefits available to him so that he may request them. In the absence of his request, those benefits are waived.\nWhile it is true that here no notice was sent to the defendant by the Macon County circuit clerk, it is equally true that this omission could not have prejudiced this defendant. After all, he failed to appear both for his trial and his sentencing hearing. Requiring the circuit clerk to send notice pursuant to section 110 \u2014 14 under these circumstances would be to require a nugatory act. The loss to the defendant of benefits otherwise available under section 110 \u2014 14 may be viewed as one additional cost of his wilful failure to appear for trial as directed. See Ill. Rev. Stat. 1987, ch. 38, par. 115 \u2014 4.1(a).\nJudgment affirmed.\nSPITZ and GREEN, JJ., concur.",
        "type": "majority",
        "author": "JUSTICE STEIGMANN"
      }
    ],
    "attorneys": [
      "Daniel D. Yuhas and Jeffrey D. Foust, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.",
      "Lawrence R. Fichter, State\u2019s Attorney, of Decatur (Kenneth R. Boyle, Robert J. Biderman, and Robert V. Shuff, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT F. EMERY, Defendant-Appellant.\nFourth District\nNo. 4\u201489\u20140042\nOpinion filed October 26, 1989.\nDaniel D. Yuhas and Jeffrey D. Foust, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nLawrence R. Fichter, State\u2019s Attorney, of Decatur (Kenneth R. Boyle, Robert J. Biderman, and Robert V. Shuff, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People."
  },
  "file_name": "0171-01",
  "first_page_order": 193,
  "last_page_order": 196
}