People ex rel. Doss v. Doss

• Decision Date: 23 December 1975
• Docket Number: No. 61307,61307
• Citation: 35 Ill.App.3d 365,342 N.E.2d 60
• Parties: PEOPLE of the State of Illinois ex rel. Pearline DOSS, Plaintiff-Appellee, v. Murphy DOSS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 60

342 N.E.2d 60

35 Ill.App.3d 365

PEOPLE of the State of Illinois ex rel. Pearline DOSS Plaintiff-Appellee, v. Murphy DOSS, Defendant-Appellant.

No. 61307.

Appellate Court of Illinois, First District, Fifth Division.

Dec. 23, 1975.

Charles Linn and Barbara Samuels, Chicago, for defendant-appellant.

William J. Scott, Atty. Gen., Chicago, for plaintiff-appellee; Stephen R. Swofford, Chicago, of counsel.

SULLIVAN, Justice:

This appeal involves the propriety of a sentence for violation of the Non-Support of Spouse and Children Act ¹ (hereafter the Act). On January 29, 1969, defendant was found guilty of non-support, a misdemeanor under section 1 of the Act in that 'without any lawful excuse' he had neglected or refused to provide for the support of his wife. The Act provides a penalty of a fine not to exceed $600 or imprisonment for a period not to exceed one year, or both. As an alternative, or in addition thereto, section 4 of the Act authorizes the court to order support payments for a period of three years and, should the terms of such an alternative order be violated, section 5 empowers the court, Inter alia, to sentence under the original conviction.

When defendant was convicted in January, 1969, he was neither fined nor sentenced, but the alternative procedure of a support order was entered requiring defendant to make payments of $25 weekly to his wife. Later, when defendant's wife became a public aid recipient, the court ordered the payments to be made to the Illinois Department of Public Aid. Defendant did not make the payments as ordered and, after a hearing on March 8, 1972 was sentenced to 60 days in the House of Corrections. The court, however, stayed the mittimus and entered what is termed a 'bring back' order, ² stating, 'I am going to give you till May 9 to come up with three hundred dollars on what you owe.' Defendant did not 'bring back' the $300 nor did he appear on May 9. A warrant for his arrest was issued and, when apprehended in early 1974, he was ordered to and did post a $700 bond. Subsequently, at a hearing held on March 15, 1974, he was ordered to 'bring back' $630 (the amount of his bond less court costs) on April 5, 1974. That amount was paid and credited toward the outstanding arrearage.

At the next hearing, on July 30, 1974, defendant was sentenced to 90 days in the House of Corrections. It appears from the record that he was indigent at that time and, in fact, was receiving public assistance. A $400 'bring back' order was entered, but the mittimus was not stayed and defendant was confined in the House of Corrections for three days, being released when the $400 was paid and credited on his arrearage. A motion to vacate the order of July 30, 1974 was then denied, and this appeal follows therefrom. Defendant contends that the order of July 30, 1974 constituted double jeopardy, deprived him of equal protection rights, and was not supported by the weight of the evidence.

OPINION

On oral argument, counsel for defendant agreed that the disposition of this appeal is dependent upon the legal effect of the 'bring back' portion of the March 8, 1972 order, which he contends was a fine. He argues that the order provided for imprisonment or a $300 fine and, when defendant thereafter paid $630, he had satisified the order. As a consequence, he maintains his imprisonment sentence on July 30, 1974 constituted double jeopardy.

From our review of the record, we believe that at the time of defendant's conviction for non-support in January of 1969, the court exercised its discretion under section 4 of the Act to postpone sentencing. Instead, it ordered payments made so that defendant might begin to support his wife, inasmuch as he was then employed and able to make such payments. When he failed to do so, the court, in entering its order of March 8, 1972, was following the mandate of section 5 of the Act, which provides in pertinent part that the court may 'sentence him or her under the original conviction, or enforce the suspended sentence, as the case may be.' Thus, it appears clear to us that on March 8, 1972, the court sentenced defendant to 60 days in the House of Corrections on the January, 1969 conviction for non-support.

We do not believe that by its 'bring back' order on that date the court was also imposing a fine. Generally, a fine is a pecuniary punishment for a violation of law and relates to a criminal offense. (19 I.L.P. Fines, Forfeitures and Penalties, § 2.) A reading of the transcript indicates that the trial judge merely agreed to stay imprisonment until May 9, 1972 so that defendant could pay $300 towards what he owed on his arrearage. By its action, the court retained the option on May 9 to commit defendant, to further stay his commitment, or to suspend or vacate his sentence. In view thereof, we think the 'bring back' order was not a pecuniary punishment and should not be considered a fine. It can only be construed as referring to a payment on the arrearage, which was entirely in keeping with the purpose of the Act; namely, to assure that defendant fulfilled his responsibility to support needy dependents. Furthermore, the stay of mittimus was for defendant's benefit and was agreed to by him. Such a stay was clearly within the court's power. State v. Headrick, 54 Ill.App.2d 44, 203 N.E.2d 157 , Cert. denied, 381 U.S. 945, 85 S.Ct 1785, 14 L.Ed.2d 708; 15 I.L.P. Criminal Law, § 832.

In light of the above, we believe that the only matter remaining before the court on July 30, 1974 was the enforcement of the suspended 60 day sentence of March 8, 1972. In effect, the court by its 90 day commitment order of July 30, 1974 imposed a new sentence. The State attempts to justify the latter order as a...