People v. Lewis

• Decision Date: 24 March 1994
• Docket Number: Docket No. 74739
• Parties: , 199 Ill.Dec. 664 The PEOPLE of the State of Illinois, Appellee, v. Ethel B. LEWIS, Appellant.
• Court: Illinois Supreme Court

Page 717

634 N.E.2d 717

158 Ill.2d 386, 199 Ill.Dec. 664

The PEOPLE of the State of Illinois, Appellee, v. Ethel B. LEWIS, Appellant.

Docket No. 74739.

Supreme Court of Illinois.

March 24, 1994.

G. Joseph Weller, Deputy Defender, and Steven E. Wiltgen, Asst. Defender, Office of State Appellate Defender, Elgin, for appellant.

Roland W. Burris, Atty. Gen., Springfield, (Rosalyn B. Kaplan, Solicitor Gen., and Terence M. Madsen, Asst. Atty. Gen., Chicago, of counsel), for the People.

Justice HARRISON delivered the opinion of the court:

The defendant, Ethel Lewis, was charged by indictment with unlawful delivery of a controlled substance (Ill.Rev.Stat.1987, ch. 56 1/2, par. 1401(c)). She was alleged to have delivered on November 3, 1988, less than one gram of a substance containing cocaine to an undercover officer. In September of 1990 a jury found her guilty as charged. Following the denial of her pro se motion for a new trial, in which she asserted the incompetence of trial counsel, she was sentenced on December 12, 1990, to probation for a term of 30 months conditioned upon, inter alia, the performance of 100 hours of public service during each year of probation and the serving of a period of home detention for 360 days. Defendant filed a notice of appeal in the appellate court on January 4, 1991, having filed no post-sentencing motion of any kind.

On appeal she presented issues related only to sentencing, contending that certain terms appearing in the written sentencing order altered or were absent from oral pronouncements of the court made upon sentencing. Following People v. Macke (1992), 224 Ill.App.3d 815, 167 Ill.Dec. 498, 587 N.E.2d 1113, the appellate court dismissed the appeal for defendant's failure to file a motion to reduce her sentence in the circuit court within 30 days after sentence was imposed, as required by section 5-8-1(c) of the Unified Code of Corrections (Ill.Rev.Stat.1989, ch. 38, par. 1005-8-1(c)). The appellate court ruled that defendant had failed to preserve properly any error that might have occurred upon sentencing. 235 Ill.App.3d 1003, 176 Ill.Dec. 838, 602 N.E.2d 492. We granted defendant leave to appeal (134 Ill.2d R. 315).

Section 5-8-1(c) provides as follows:

"A motion to reduce a sentence may be made, or the court may reduce a sentence without motion, within 30 days after the sentence is imposed. However, the court may not increase a sentence once it is imposed.

If a motion to reduce a sentence is timely filed within 30 days after the sentence is imposed, the proponent of the motion shall exercise due diligence in seeking a determination on the motion and the court shall thereafter decide such motion within a reasonable time.

If a motion to reduce a sentence is timely filed within 30 days after the sentence is imposed, then for purposes of perfecting an appeal, a final judgment shall not be considered to have been entered until the motion to reduce a sentence has been decided by order entered by the trial court.

A motion to reduce a sentence shall not be considered to have been timely filed unless it is filed with the circuit court clerk within 30 days after the sentence is imposed together with a notice of motion, which notice of motion shall set the motion on the court's calendar on a date certain within a reasonable time after the date of filing." (Emphasis added.) (Ill.Rev.Stat.1989, ch. 38, par. 1005-8-1(c).)

In Macke one of the districts of the appellate court held that section 5-8-1(c) requires a defendant to file a motion to reduce his sentence with the trial court within 30 days after the sentence is imposed before he may bring an appeal related solely to matters of sentencing. (Macke, 224 Ill.App.3d at 816, 167 Ill.Dec. 498, 587 N.E.2d 1113.) In People v. Turner (1992), 233 Ill.App.3d 449, 456, 174 Ill.Dec. 558, 599 N.E.2d 104, however, another district of the appellate court expressly declined to follow Macke, thereby creating a conflict among the districts of that court.

The question before us is one of statutory construction. A primary rule of statutory construction is that the intention of the legislature be ascertained and given effect. (People v. Robinson (1982), 89 Ill.2d 469, 475, 60 Ill.Dec. 632, 433 N.E.2d 674.) In order to determine legislative intent, a statute must be read as a whole, and all relevant parts must be considered. (People v. Jordan (1984), 103 Ill.2d 192, 206, 82 Ill.Dec. 925, 469 N.E.2d 569.) Whether a statutory provision is to be deemed mandatory or merely directory depends upon the intent of its drafters. (People v. Youngbey (1980), 82 Ill.2d 556, 562, 45 Ill.Dec. 938, 413 N.E.2d 416.) An important aid in the determination of the question whether a provision is mandatory or directory is the form of the verb used in the statute. (Youngbey, 82 Ill.2d at 562, 45 Ill.Dec. 938, 413 N.E.2d 416.) Except in very unusual circumstances affecting the public interest, legislative use of the word "may" is permissive rather than mandatory. (In re Marriage of Freeman (1985), 106 Ill.2d 290, 298, 88 Ill.Dec. 11, 478 N.E.2d 326.) That is to say, in statutory construction the word "may" means "must" or "shall" only where the public interest and rights are concerned and where the public or third persons have a claim de jure that a power be exercised or where it is necessary so to construe the word in order to carry out the legislative intent. Boddiker v. McPartlin (1942), 379 Ill. 567, 578, 41 N.E.2d 756.

Section 5-8-1(c) states initially that "[a] motion to reduce sentence may be made, or the court may reduce a sentence without motion, within 30 days after...