{
  "id": 2797974,
  "name": "The People of the State of Illinois, Plaintiff-Appellee, v. Carlton Robert Ward, Defendant-Appellant",
  "name_abbreviation": "People v. Ward",
  "decision_date": "1975-10-16",
  "docket_number": "No. 12691",
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  "last_updated": "2023-07-14T16:14:58.460223+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [],
    "parties": [
      "The People of the State of Illinois, Plaintiff-Appellee, v. Carlton Robert Ward, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE CRAVEN\ndelivered the opinion of the court:\nIn 1970, defendant entered a plea of guilty to the offense of indecent liberties with a child. His motion for probation was granted conditioned upon serving 9 months in the Illinois State Penal Farm at Vandalia. A petition to revoke this probation was granted on September 17, 1973. On October 11, 1973, defendant was sentenced to 4 to 5 years\u2019 imprisonment as a result of the probation revocation. Defendant appeals, contending the sentence should be vacated and the case remanded for re-sentencing.\nThe record clearly discloses that the trial court believed defendant\u2019s rehabilitation could best be accomplished by a combination of periodic imprisonment and psychiatric treatment. However, the court concluded that this disposition was not an option under section 5 \u2014 6\u20144(e) of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005 \u2014 6\u2014 4(e)), because periodic imprisonment was not available as a sentencing alternative at the time of defendant\u2019s initial sentencing hearing.\nDefendant\u2019s probation revocation is governed by the provisions of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1001 \u2014 1\u20141 et seq.). Section 5 \u2014 6\u20144(e) of the Unified Code of Corrections in subsection (e) states:\n\u201cIf the court finds that the offender has violated a condition at any time prior to the expiration or termination of the period, it may continue him on the existing sentence, with or without modifying or enlarging the conditions, or may impose any other sentence that was available under Section 5 \u2014 5\u20143 [Ill. Rev. Stat. 1973, ch. 38, par. 1005 \u2014 5\u20143] at the time of initial sentencing.\u201d\nSentences of periodic imprisonment or conditional discharge are possibilities available to the court under section 5 \u2014 5\u20143(d)(1) of the Unified Code of Corrections. However, it was the trial court\u2019s belief that section 5 \u2014 6\u20144(e) required it to consider only those sentences available to it in December 1970 when defendant was initially sentenced. Other than probation, a defendant convicted of indecent liberties with a child could only have been sentenced to a term of imprisonment under the Criminal Code of 1961. (Ill. Rev. Stat. 1969, ch. 38, par. 11 \u2014 4(c).) The court ruled out further probation for defendant.\nThe trial court was in error in applying this restricted interpretation of the sentencing alternatives available upon a finding of probation violation. Under the doctrine set forth by our supreme court in People v. Chupich, 53 Ill.2d 572, 295 N.E.2d 1, and People v. Harvey, 53 Ill.2d 585, 294 N.E.2d 269, all of the sentencing alternatives available under section 5 \u2014 5\u20143 of the Code could have been considered by the trial court in sentencing defendant upon his probation revocation. As recognized by the trial court, some of the alternatives available under section 5 \u2014 5\u20143 were nonexistent at the time of defendant\u2019s original conviction and sentencing hearing. For purposes of Chupich, Harvey, and the Code, these alternatives can be considered to be \u201cless than under the prior law\u201d (Ill. Rev. Stat. 1973, ch. 38, par. 1008 \u2014 2\u20144), and, therefore, available to the court for its consideration.\nWe reach a similar result under our statute on statutes, which provides in section 4:\n\u201cIf any penalty, forfeiture or punishment be mitigated by any provisions of a new law, such provision may, by the consent of the party affected, be applied to any judgment pronounced after the new law takes effect.\u201d (Ill. Rev. Stat. 1973, ch. 131, par. 4.)\nThe punishment provisions of the Unified Code of Corrections are applicable to sentencing after a probation revocation in this case because sentencing here constitutes a judgment after tire new Code provisions take effect. (People v. Hansen, 28 Ill.2d 322, 192 N.E.2d 359.) Under preUnified Code of Corrections law, probation was not a sentence. (People v. Gentry, 5 Ill.App.3d 1088, 284 N.E.2d 428; People v. Dickinson, 13 Ill. App.3d 469, 300 N.E.2d 294.) Instead, it was a suspension of the sentence. {Gentry.) Under the Code of Criminal Procedure of 1963, a \u201cjudgment\u201d meant the adjudication by the court that the defendant was guilty or not guilty, and if guilty, it included the sentence pronounced by the court. (Ill. Rev. Stat. 1989, ch. 38, par. 102 \u2014 14.) For purposes of defining \u201cjudgment\u201d as used in the statute on statutes, there was not yet a judgment when the Unified Code of Corrections took effect on January 1, 1973. (This is not to overlook the special provision in the Code of Criminal Procedure of 1963 that allowed an appeal from a judgment of guilty when probation was granted. (Ill. Rev. Stat. 1969, ch. 38, par. 117 \u2014 1(d).)) Therefore, defendant should have been given the choice of having the Unified Code of Corrections\u2019 sentencing provisions applied to his probation revocation under section 4 of the statute on statutes.\nSection 5 \u2014 5\u20143 was applied by the court in People v. Baylor, 23 Ill.App.3d 309, 319 N.E.2d 112, to a factual situation not unlike this case. In Baylor, the original conviction occurred before the effective date of the Unified Code of Corrections, with probation revocation occurring subsequent to its date of applicability. In sentencing defendant under section 5 \u2014 6\u20144(e)\u2019s mandate that the sentences available under section 5 \u2014 5\u20143 be applied, the court looked to the imprisonment terms contained in section 5 \u2014 8\u20141 instead of applying the pre-Code sentences which were greater. A similar result was reached in People v. Stillwell, 23 Ill.App.3d 796, 320 N.E.2d 120.\nSection 5 \u2014 6\u20144(h) of the Code (Ill. Rev. Stat. 1973, ch. 38, par. 1005 \u2014 6\u20144(h)) did provide for mandatory credit for time served on probation. Now, however, under that same section, effective July 1, 1974, credit for time served is given unless the court orders otherwise. Thus, in the context of this case, periodic imprisonment without credit for time served on the prior probation is a sentence alternative mitigated by the new Code of Corrections and under the cited section of the statute on statutes is optionally available as a sentence alternative. Accordingly, we hold that such sentence alternatives are available to the trial court if used with the consent of the party affected. In view of the stated preference by the court for such disposition, and the clear indication that such would be preferable so far as the defendant is concerned, we vacate the sentence and remand this cause to the circuit court of Adams County for imposition of a new sentence.\nConviction affirmed; sentence vacated; cause remanded.\nGREEN, J., concurs.",
        "type": "majority",
        "author": "Mr. JUSTICE CRAVEN"
      },
      {
        "text": "Mr. PRESIDING JUSTICE SIMKINS,\ndissenting;\nI agree with the court\u2019s decision insofar as it states that the trial judge could consider, upon revocation of probation, sentencing alternatives available under the Unified Code of Corrections. However, I do not believe that the alternative of periodic imprisonment was or is available to the trial judge in this case.\nAt the time of the probation revocation proceedings, defendant had served well over two years\u2019 probation. Section 5 \u2014 6\u20144(h) of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005 \u2014 6\u20144(h)) provided that time served on probation \u201cshall be credited * \u00bb * against a sentence of * * * periodic imprisonment * * Since the maximum time for periodic imprisonment is two years (Ill. Rev. Stat. 1973, ch. 38, par. 1005 \u2014 6\u20143(b)(1)), the mandatory credit provisions would have prohibited such a sentence. This court holds that periodic imprisonment is now available because of a change, effective July 1, 1974, that time on probation is credited \u201cunless the court orders otherwise.\u201d This provision is available only if it is less than under prior law. (Ill. Rev. Stat. 1973, ch. 38, par. 1008 \u2014 2\u20144.) A change from mandatory to discretionary credit cannot, in my opinion, be considered less harsh. Nor do I believe that the section of the statute on statutes cited by the majority (Ill. Rev. Stat. 1973, ch. 131, par. 4) supports the decision. The discretionary credit provision does not mitigate defendant\u2019s sentence, and it is that provision which must be applied.\nOn remand, the trial judge, in order to sentence defendant to periodic imprisonment, would have to deny credit for time spent on probation. I do not see how it can be argued, in construing section 5 \u2014 6\u20144(h), that denial of credit is less harsh than allowance of credit.\nAccordingly I would affirm the sentence imposed.",
        "type": "dissent",
        "author": "Mr. PRESIDING JUSTICE SIMKINS,"
      }
    ],
    "attorneys": [
      "Donald G. Adams, of Quincy, for appellant.",
      "Robert J. Bier, State\u2019s Attorney, of Quincy (Jerry L. Brennan, Assistant State\u2019s Attorney, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "The People of the State of Illinois, Plaintiff-Appellee, v. Carlton Robert Ward, Defendant-Appellant.\n(No. 12691;\nFourth District\nOctober 16, 1975.\nSIMKINS, P. J., dissenting.\nDonald G. Adams, of Quincy, for appellant.\nRobert J. Bier, State\u2019s Attorney, of Quincy (Jerry L. Brennan, Assistant State\u2019s Attorney, of counsel), for the People."
  },
  "file_name": "0781-01",
  "first_page_order": 807,
  "last_page_order": 811
}