People v. Brady, 4-87-0855
Decision Date | 28 July 1988 |
Docket Number | No. 4-87-0855,4-87-0855 |
Citation | 123 Ill.Dec. 127,172 Ill.App.3d 1079,527 N.E.2d 590 |
Parties | , 123 Ill.Dec. 127 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Antonio T. BRADY, Defendant-Appellant. |
Court | United States Appellate Court of Illinois |
Daniel D. Yuhas, Deputy Defender, Office of State Appellate Defender, Springfield, Jane Raley, Asst. Defender, for defendant-appellant.
Jeffrey K. Davison, State's Atty., Decatur, Kenneth R. Boyle, Director, State's Attys. Appellate Prosecutor, Springfield, Robert J. Biderman, Deputy Director, William P. Ryan, Sr. Staff Counsel, for plaintiff-appellee.
In April 1987 defendant pleaded guilty to the offense of driving while his driver's license was revoked, having previously been convicted in May 1986 of driving while revoked with the prior conviction for leaving the scene of a personal injury accident, a Class 4 felony. (Ill.Rev.Stat.1985, ch. 95 1/2, par. 6-303(d).) On May 13, 1987, he was sentenced to a term of one year of probation. Thereafter, a report of probation violation was filed, alleging that on or about May 30, 1987, defendant committed the offense of driving a motor vehicle while license revoked with a prior driving while license revoked conviction. After hearing in October 1987, the court found the State had proved this violation of probation by a preponderance of the evidence and, on October 30, 1987, defendant was sentenced to a term of 18 months' imprisonment, with credit for time served in jail but no credit for time served on probation. Upon motion of the State's Attorney for reimbursement of the county for court-appointed counsel (Ill.Rev.Stat.1987, ch. 38, par. 113-3.1), the court found defendant had the ability to pay, as demonstrated by cash bond posted, and ordered reimbursement in the sum of $45. Defendant appeals from the judgment of the circuit court of Macon County, arguing (1) the trial court erred in failing to order an updated presentence investigation report prior to sentencing after defendant's revocation of probation; and (2) the court abused its discretion in ordering reimbursement to Macon County for the services of court-appointed counsel from monies deposited for his bail.
With respect to his first argument, defendant relies on section 5-3-1 of the Unified Code of Corrections (Code) (Ill.Rev.Stat.1985, ch. 38, par. 1005-3-1) and on the supreme court's decision in People v. Harris (1985), 105 Ill.2d 290, 85 Ill.Dec. 486, 473 N.E.2d 1291.
Section 5-3-1 of the Code provides: "A defendant shall not be sentenced for a felony before a written presentence report of investigation is presented to and considered by the court." This section was considered in People v. McCrory (1976), 43 Ill.App.3d 892, 2 Ill.Dec. 542, 357 N.E.2d 709. In McCrory, as here, the defendant argued his sentence should be vacated because the trial court did not order a second, or "updated," presentence report prior to resentencing after finding a probation violation and terminating probation. This court disagreed, reasoning:
( McCrory, 43 Ill.App.3d at 893, 2 Ill.Dec. at 543, 357 N.E.2d at 710.)
See also People v. Chaney (1977), 48 Ill.App.3d 775, 6 Ill.Dec. 455, 362 N.E.2d 1375, appeal denied (1977), 66 Ill.2d 632 ( ). But see People v. Demma (1980), 92 Ill.App.3d 303, 47 Ill.Dec. 931, 415 N.E.2d 1244, wherein the original presentence report was prepared based on the defendant's December 1974 guilty plea to felony theft and burglary and he was placed on five years' probation. A hearing on probation violations was conducted in December 1978 and probation was revoked. Prior to sentencing, defendant purported to waive his right to a presentence report. Upon considering section 5-3-1 of the Code, as amended (see Ill.Rev.Stat.1979, ch. 38, par. 1005-3-1) (eliminating language permitting waiver except in the case of an agreed sentence), the Demma court vacated the sentences and remanded for resentencing where "no such [presentence] reports were prepared prior to the sentencing of the defendant." 92 Ill.App.3d at 308, 47 Ill.Dec. at 935, 415 N.E.2d at 1248.
In People v. Coleman (1983), 120 Ill.App.3d 619, 623, 76 Ill.Dec. 234, 236, 458 N.E.2d 634, 636, the court stated:
Coleman, 120 Ill.App.3d at 623, 76 Ill.Dec. at 236, 458 N.E.2d at 636.
Defendant maintains the supreme court established a per se rule in Harris which was violated by the trial court here and can only be cured by reversing the sentence and remanding for resentencing. In Harris, the court considered section 5-3-1 in the context of sentencing after revocation of probation:
"[W]hen the defendant is placed on probation, section 5-3-1 requires a report prior to resentencing unless there is an agreed-upon sentence in the probation-revocation proceeding. Since no agreement was reached between the parties as to the specific sentence which was to be imposed following the revocation of defendants' probation, presentence reports should have been ordered by the respective courts.
Nonetheless, the State urges this court to affirm the sentences which were imposed by finding that the defendants have waived their right to protest the absence of a presentence report. Although neither defendant objected to the trial courts' sentencing procedures during the probation-revocation proceedings, we cannot say that this issue has been waived. In Youngbey, this court held 'that the presentence investigation and report * * * cannot be waived except in accordance with the exception in the statute.' (People v. Youngbey (1980), 82 Ill.2d 556, 561 [45 Ill.Dec. 938, 413 N.E.2d 416].) In that case the defendant had expressly waived a presentence investigation report. However, since no specific sentence had been agreed to by the parties, the court found 'that the language of section 5-3-1, requiring a presentence investigation report, not only is mandatory, but also cannot be waived.' (82 Ill.2d 556, 564 [45 Ill.Dec. 938, 413 N.E.2d 416].) Certainly, if an express waiver is invalid absent an agreed-upon sentence, waiver cannot be inferred from the defendants' failure to object in the cases at bar.
Additionally, we find the State's reliance on [People v.] Meeks to be misplaced. In Meeks, the...
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