{ "id": 25449, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL J. McNETT, Defendant-Appellant", "name_abbreviation": "People v. McNett", "decision_date": "2003-04-14", "docket_number": "No. 2-01-0864", "first_page": "257", "last_page": "261", "citations": [ { "type": "official", "cite": "338 Ill. App. 3d 257" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "161 Ill. App. 3d 432", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3468072 ], "year": 1987, "pin_cites": [ { "page": "435" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/161/0432-01" ] }, { "cite": "133 Ill. App. 3d 788", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3529624 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/ill-app-3d/133/0788-01" ] }, { "cite": "196 Ill. App. 3d 133", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2488172 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/ill-app-3d/196/0133-01" ] }, { "cite": "49 Ill. App. 3d 382", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5639567 ], "year": 1977, "pin_cites": [ { "page": "386" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/49/0382-01" ] }, { "cite": "332 Ill. App. 3d 193", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1034094 ], "year": 2002, "pin_cites": [ { "page": "195" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/332/0193-01" ] }, { "cite": "163 Ill. 2d 346", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477785 ], "weight": 3, "year": 1994, "pin_cites": [ { "page": "354" }, { "page": "352" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/163/0346-01" ] }, { "cite": "321 Ill. App. 3d 920", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 132432 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "921" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/321/0920-01" ] } ], "analysis": { "cardinality": 499, "char_count": 9585, "ocr_confidence": 0.762, "pagerank": { "raw": 6.380125665320789e-08, "percentile": 0.3905924631127143 }, "sha256": "ec284a640380a11c122fca804d4a7e804e883c84df63122c9a28e037ebc057e5", "simhash": "1:9b6bbd0f21420ef1", "word_count": 1576 }, "last_updated": "2023-07-14T21:28:15.941926+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. DANIEL J. McNETT, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE BOWMAN\ndelivered the opinion of the court:\nIn separate cases, defendant, Daniel McNett, pleaded guilty to two felony counts of driving under the influence of alcohol (DUI) (625 ILCS 5/11 \u2014 501(a) (West 1998)), as well as a felony count of driving while his license was revoked (DWLR) (625 ILCS 5/6 \u2014 303 (West 1998)). Pursuant to a plea agreement, he received 2 concurrent 30-month sentences of imprisonment and a consecutive 30-month sentence of probation with the condition that he serve 18 months of periodic imprisonment. Defendant later moved to vacate the periodic imprisonment condition, alleging that it was void. The trial court reduced the term from 18 months to 12 months, but refused to vacate the remainder of the \"term. Defendant appeals, contending that the court lacked authority to impose periodic imprisonment consecutive to a prison term.\nIn case No. 99 \u2014 CF\u20141521, defendant was charged with felony DUI and a misdemeanor count of DWLR. In case No. 99 \u2014 CF\u20141280, he was charged with a misdemeanor count of DWLR and felony DUI. In case No. 99 \u2014 CF\u20141472, he was charged with felony DUI and felony DWLR.\nPursuant to an agreement with the State, defendant pleaded guilty to all the charges except the DUI in case No. 99 \u2014 CF\u20141280, which the State nol-prossed. Under the agreement, defendant was sentenced to concurrent 30-month prison terms for the DUI in case No. 99\u2014 CF \u2014 1521 and the DWLR in case Np. 99 \u2014 CF\u20141280. In case No. 99\u2014 CF \u2014 1472, he was sentenced to 30 months of probation for each charge, with the condition that he serve 18 months of periodic imprisonment. The probation terms were to be served concurrent to each other, but consecutive to the prison sentences in the other two cases. The purpose of structuring the sentences in this way was so that defendant could receive treatment for his alcoholism while in the county jail.\nOn July 12, 2000, defendant, who had retained a new attorney, moved to stay or vacate the periodic imprisonment term. The trial court, through Judge John T. Phillips, denied the motion on July 28, 2000. On August 25, 2000, defendant moved to reconsider. However, he took no further action on the motion until December 12, 2000, when the State moved to revoke his probation.\nOver the next several months, defendant, at various times acting pro se, represented by the appellate defender, or represented by private counsel, filed numerous motions, including one alleging that all of the judges of the Nineteenth Judicial Circuit were prejudiced against him. Defendant and his attorneys also filed various new or amended motions to vacate the periodic imprisonment term.\nOn May 21, 2001, the court, through Judge Mary S. Schostok, denied defendant\u2019s request to vacate his periodic imprisonment. The court agreed with defendant that under this court\u2019s decision in People v. Ortiz, 321 Ill. App. 3d 920 (2001), he could not be sentenced to more than 12 months of periodic imprisonment. Therefore, the court vacated six months of the term, which resulted in defendant\u2019s immediate release from custody. However, relying on People v. Wendt, 163 Ill. 2d 346 (1994), the court ruled that the remainder of the sentence was not void. On June 1, 2001, defendant filed a notice of appeal.\nBefore turning to the merits, we must dispose of two preliminary matters. The State contends that we lack jurisdiction to hear this appeal because defendant filed his notice of appeal nearly two years after he received the sentence he complains of and almost one year after his first motion to vacate the sentence was denied. However, defendant contends that the sentence was void, and a void order may be attacked at any time. Ortiz, 321 Ill. App. 3d at 921. In Ortiz, we reached the merits of the appeal under similar circumstances, and we conclude that we have jurisdiction of the present appeal as well.\nWe also note that this case appears to be moot. When the trial court reduced the term of periodic imprisonment from 18 months to 12 months, defendant was immediately released from custody. In general, where the only relief sought is to vacate a sentence, the issue becomes moot when the sentence has been served. People v. Lieberman, 332 Ill. App. 3d 193, 195 (2002). However, a case is not moot if a defendant may be subject to collateral legal consequences after serving the sentence. People v. Cotto, 49 Ill. App. 3d 382, 386 (1977). Here, defendant argues, and the State agrees, that defendant may be subject to collateral consequences as a result of the challenged sentence. Therefore, we decline to find the issue moot.\nTurning to the merits, defendant contends that this case is governed by People v. Gerdes, 196 Ill. App. 3d 133 (1990), which held that the Unified Code of Corrections (the Code) (730 ILCS 5/1 \u2014 1\u20141 et seq. (West 2000)) does not authorize a court to impose periodic imprisonment consecutive to a continuous prison term. The State responds that Wendt implicitly overruled Gerdes and governs this case.\nIn Wendt, the supreme court concluded that nothing in the Code prohibited a court from sentencing a defendant to a probation term consecutive to a prison term. Wendt, 163 Ill. 2d at 354. In affirming the appellate court\u2019s holding that such a sentence was authorized, the court observed that the appellate court had disagreed with an earlier case, People v. Mack, 133 Ill. App. 3d 788 (1985), that had refused to approve such a sentence. The court then listed several other cases, including Gerdes, that had reached the same result as Mack, but expressed its agreement with the position taken by the court below. Wendt, 163 Ill. 2d at 352. Thus, the State has a firm basis for arguing that Wendt overruled Gerdes.\nMoreover, although the parties somewhat imprecisely refer to defendant\u2019s sentence as one of periodic imprisonment, in fact the court sentenced him to a consecutive term of probation, conditioned upon serving a term of periodic imprisonment. Thus, defendant\u2019s sentence, prison followed by probation, was precisely the type approved by Wendt. Nothing in Wendt purports to limit the conditions that a trial court can attach to probation. Section 5 \u2014 6\u20143 of the Code specifically permits, without restriction, a term of periodic imprisonment as a condition of probation. 730 ILCS 5/5 \u2014 6\u20143(b)(1) (West 2000).\nIn spite of this, defendant insists that part of the holding of Ger-des survives Wendt. Defendant concedes that Gerdes relied on the rationale of Mack that the supreme court expressly rejected. However, he contends that Gerdes relied on a second rationale that Wendt did not affect.\nGerdes cites the council commentary to section 5 \u2014 7\u20148 of the Code. That section provides in part that the \u201cservice of a sentence of imprisonment shall satisfy any sentence of periodic imprisonment.\u201d 730 ILCS 5/5 \u2014 7\u20148(a) (West 2000). The council commentary states, \u201cThis section adopts a rule of concurrency for most sentences of periodic imprisonment because there seems to be small value in tacking such a sentence onto the beginning or the end of a continuous prison term.\u201d 730 ILCS Ann. 5/5 \u2014 7\u20148, Council Commentary, at 243 (Smith-Hurd 1997); see also People v. Lueloff, 161 Ill. App. 3d 432, 435 (1987).\nDefendant points out that Wendt approved the sentence at issue because it found nothing in the Code prohibiting a probation term consecutive to a prison sentence. Defendant argues that section 5 \u2014 7\u20148 does prohibit a consecutive sentence of periodic imprisonment. We disagree for two reasons.\nFirst, section 5 \u2014 7\u20148 is entitled \u201cSubsequent Sentences.\u201d The first sentence reads in full, \u201cThe service of a sentence of imprisonment shall satisfy any sentence of periodic imprisonment which was imposed on an offender for an offense committed prior to the imposition of the sentence.\u201d 730 ILCS 5/5 \u2014 7\u20148(a) (West 2000). This section, by its express terms, applies only to a prison sentence imposed after a sentence of periodic imprisonment. It says nothing about sentences that, as here, were imposed at the same time.\nEven if this section applied here, it does not absolutely prohibit a periodic imprisonment term consecutive to a continuous sentence. The council commentary on which defendant relies states that the section prescribes that \u201cmost\u201d periodic imprisonment sentences be concurrent. 730 ILCS Ann. 5/5 \u2014 7\u20148, Council Commentary, at 243 (Smith-Hurd 1997). Thus, consecutive sentences will be allowed in at least some instances. See 730 ILCS 5/5 \u2014 7\u20148(b) (West 2000) (only sentence of more than 90 days will satisfy periodic imprisonment sentence). The provision, as explained by the council commentary, expresses only a legislative judgment that in most cases a periodic imprisonment term tacked onto a straight-time prison sentence will serve little purpose. Here, defendant expressly agreed to the consecutive term to accomplish a specific purpose: his rehabilitation from alcoholism. Nothing in section 5 \u2014 7\u20148 purports to prohibit simultaneously imposed consecutive sentences under appropriate circumstances.\nThe judgment of the circuit court of Lake County is affirmed.\nAffirmed.\nHUTCHINSON, EJ., and GILLERAN JOHNSON, J, concur.", "type": "majority", "author": "JUSTICE BOWMAN" } ], "attorneys": [ "G. Joseph Weller and Thomas A. Lilien, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.", "Michael J. Waller, State\u2019s Attorney, of Waukegan (Martin P. Moltz, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), and Constance Augsburger, of Mt. Morris, for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL J. McNETT, Defendant-Appellant.\nSecond District\nNo. 2\u201401\u20140864\nOpinion filed April 14, 2003.\nG. Joseph Weller and Thomas A. Lilien, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.\nMichael J. Waller, State\u2019s Attorney, of Waukegan (Martin P. Moltz, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), and Constance Augsburger, of Mt. Morris, for the People." }, "file_name": "0257-01", "first_page_order": 275, "last_page_order": 279 }