People ex rel. Gibson v. Cannon

• Decision Date: 31 March 1976
• Docket Number: No. 75--183,75--183
• Citation: 345 N.E.2d 218,37 Ill.App.3d 69
• Parties: PEOPLE of the State of Illinois ex rel. Randall L. GIBSON, Petitioner-Appellant, v. Joseph CANNON, Warden Stateville Correctional Center, Respondent-Appellee.
• Court: United States Appellate Court of Illinois

Page 218

345 N.E.2d 218

37 Ill.App.3d 69

PEOPLE of the State of Illinois ex rel. Randall L. GIBSON Petitioner-Appellant, v. Joseph CANNON, Warden Stateville Correctional Center Respondent-Appellee.

No. 75--183.

Appellate Court of Illinois, Third District.

March 31, 1976.

Mark W. Burkhalter, State Appellate Defender Agency, Ottawa, Verlin R. Meinz, Ottawa, counsel, for petitioner-appellant.

Thomas E. Cowgill, Asst. State's Atty., counsel, Martin Rudman, State's Atty., Joliet, for respondent-appellee.

STOUDER, Justice.

This appeal by Randall Gibson, is from the denial and dismissal of his petition for writ of habeas corpus in the circuit court of Will County. Respondent-appellee, Joseph Cannon, the Warden of the Stateville Correctional Center, is represented by the Will County State's Attorney.

On July 31, 1974, Gibson filed a petition for a writ of habeas corpus in the circuit court of Will County claiming the Department of Corrections was holding him illegally since he had fully served the penitentiary sentences imposed upon him. The basis for his claim was his contention the determination by the Department of Corrections that his burglary sentence should run consecutively to, rather than concurrently with, his robbery sentence, was not in accordance with the burglary judgment order nor was it required by statutory law. He asked the court to rule the burglary sentence run concurrently with the robbery sentence.

On April 27, 1971, after a conviction for robbery, Gibson was sentenced to a term of from one to five years in the penitentiary. On December 22, 1971, he was paroled from that sentence. On June 9, 1973, while still on parole, he was arrested in Cook County on a burglary charge. He pled guilty to the burglary charge and on December 3, 1973 was sentenced by the circuit court of Cook County to a term of from one year to one year and a day in the penitentiary. On February 4, 1974, he was declared a parole violator by the Parole and Pardon Board as of June 9, 1973. On April 22, 1974, he was informed by the Department of Corrections his burglary sentence would run consecutively to his prior robbery sentence. The order of the circuit court of Cook County did not specify whether the sentence was to run consecutively or concurrently.

The general rule is in the absence of specific provisions to the contrary in the judgment order, two or more sentences of a defendant to the same place of confinement run concurrently. People v. Anderson, 407 Ill. 503, 95 N.E.2d 366; People v. Boney, 128 Ill.App.2d 170, 262 N.E.2d 766. This rule, of course, as conceded by defendant, would not apply where there is contrary statutory law. Since the judgment order in the case at bar is silent, we must determine if there is statutory law contrary to the general rule. The Department of Corrections argues that under Ill.Rev.Stat.1973, ch. 38, par. 1005--8--4(f), a sentence imposed on petitioner for an offense committed while on parole is required to be made consecutive to the sentence underlying the parole. This subsection of the statute reads: 'A sentence of an offender committed to the Department of Corrections at the time of the commission of the offense shall be served consecutive to the sentence under which he is held by the Department of Corrections * * *'. The disposition of this case depends on the construction to be given the cited statute.

There is recent case law concerning the above-cited provision. In People v. Griffith, 26 Ill.App.3d 405, 325 N.E.2d 392 defendant was charged with four counts of forgery while on parole. He pled guilty and was sentenced to concurrent sentences. Defendant contended Ill.Rev.Stat.1973,...