People v. Gardner
| Citation | 15 Ill.App.3d 255,304 N.E.2d 125 |
| Decision Date | 14 November 1973 |
| Docket Number | No. 72--185,72--185 |
| Parties | PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Lewis GARDNER, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
James Geis, State Appellate Defender Agency, Ottawa, for defendant-appellant.
Jose M. Nunes, Asst. State's Atty., Joliet, for plaintiff-appellee.
Defendant Lewis Gardner was indicted for the offense of escape, and pleaded guilty to the offense and was sentenced to prison for a term of 3 to 10 years with the sentence to run consecutively with the sentence he was serving at the time of escape (3 to 4 years for burglary). In his appeal from the judgment of the Circuit Court of Will County, defendant challenges the constitutionality of the statute under which he was convicted.
It is contended on appeal in this Court that defendant was denied equal protection of the law since he was convicted under Illinois Revised Statutes, ch. 108, § 121. This section of the act provides that 'whoever being a prisoner in the Illinois State Penitentiary escapes or attempts to escape therefrom * * * is guilty of a felony and, upon conviction thereof, shall be imprisoned in the penitentiary not less than one year and not more than ten years; provided, however, that any sentence of imprisonment imposed upon conviction of any prisoner for so escaping or attempting to escape shall not commence until the expiration of the term which the prisoner was serving at the time of the escape.' This section of the act was the one to which defendant had pleaded guilty. There is a second escape statute under which it is asserted appellant could have been (but was not) prosecuted, and that is Section 31--6(a) of Chapter 38, Illinois Revised Statutes, which provides:
'A person convicted of a felony, or charged with the commission of a felony who intentionally escapes from any penal institution or from the custody of an employee of that institution shall be imprisoned in the penitentiary from one to 10 years.'
In comparing the two statutes, it is revealed that they describe the same offense and that the only difference is that the first proposed a mandatory consecutive sentence, whereas the second impliedly allows a consecutive or concurrent sentence.
It is contended on the basis of People v. McCollough, 8 Ill.App.3d 963, 291 N.E.2d 505, that the State's Attorney has been improperly allowed to prosecute under either one of the sections, and that, therefore, defendant is unconstitutionally denied equal protection of the law. It is contended that there is no difference between the situation in which a State's Attorney was improperly allowed to choose whether to prosecute for a felony or a misdemeanor and the situation where the State's Attorney's choice was between an offense imposing a mandatory consecutive sentence or one permitting a concurrent sentence as in the instant case.
The State points out, however, that until January 1, 1973, the Illinois Revised Statutes, ch. 38 § 31--6, now chapter 38 § 1005--8, contained a General statutory provision applying to escape. This provision simply specified that a person convicted of a felony who intentionally escapes from any penal institution or from the custody of an employee of that institution shall be imprisoned in the penitentiary from one to ten years. That statute attempted to relate the offense, not only to the place where committed, but also to the seriousness of the offense or the alleged offense for which a prisoner is held. A revision of the statute was approved in July 1961. At the same time there were also two Particular enactments. Ch. 118 § 18 of the Illinois Revised Statutes provided specifically for a consecutive sentencing of escaped prisoners from the Illinois State Farm. Ch. 108 § 121 of Illinois Revised Statutes, similarly provided for consecutive sentencing of prisoners escaping from the Illinois State Penitentiary. It is, therefore, clear that by re-enacting the two Particular statutes four days after the enactment of the General statute, the legislature did not intend to repeal the General statute but specifically intended to provide for Consecutive sentences as specified in the Particular statutes.
The statute in...
To continue reading
Request your trial
-
People v. Penrod
...may be given to all the provisions of each statute if it can be done by a fair and reasonable construction. People v. Gardner, 15 Ill.App.3d 255, 257, 304 N.E.2d 125, 127 (1973). It is presumed that all statutes relating to one subject are governed by one policy and that the legislature int......
-
People v. Rivera
...v. Nelson (1975), 26 Ill.App.3d 227, 324 N.E.2d 719; People v. Piper (1974), 20 Ill.App.3d 94, 312 N.E.2d 851; People v. Gardner (1973), 15 Ill.App.3d 255, 304 N.E.2d 125; see generally People v. Marble (1982), 91 Ill.2d 242, 62 Ill.Dec. 953, 437 N.E.2d 641. The record of the February 23, 1......
-
Clark v. State
...as not to be without any reasonable basis and purely arbitrary. Accord, Alex v. State, 484 P.2d 677 (Alaska 1971); People v. Gardner, 15 Ill.App.3d 255, 304 N.E.2d 125 (1973); State v. Pebworth, 260 La. 647, 257 So.2d 136 However, our conclusion that the three year exception in § 139(a) whe......
-
People v. Roberts
...the case of Ashton v. County of Cook, 384 Ill. 287, 51 N.E.2d 161 (1943), and the decision of this court in People v. Gardner, 15 Ill.App.3d 255, 304 N.E.2d 125 (3rd District, 1973). It is clear that in Illinois, if conduct for which a defendant is prosecuted constitutes a felony under one ......