People v. Smith

• Decision Date: 04 March 1993
• Docket Number: No. 4-92-0234,4-92-0234
• Citation: 609 N.E.2d 1004,242 Ill.App.3d 399,182 Ill.Dec. 470
• Parties: , 182 Ill.Dec. 470 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Albert Fred SMITH a/k/a Fred Smith, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1004

609 N.E.2d 1004

242 Ill.App.3d 399, 182 Ill.Dec. 470

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Albert Fred SMITH a/k/a Fred Smith, Defendant-Appellant.

No. 4-92-0234.

Appellate Court of Illinois Fourth District.

March 4, 1993.

Daniel D. Yuhas, Deputy Defender, Office of the State Appellate Defender, Springfield, for defendant-appellant.

Thomas J. Difanis, State's Atty., Urbana, Norbert J. Goetten, Director, State's Attys. Appellate Prosecutor, Springfield, Robert J. Biderman, Deputy Director, for plaintiff-appellee.

Justice KNECHT delivered the opinion of the court:

Defendant, Albert Smith, pleaded guilty to one count of aggravated criminal sexual abuse in 1988. (Ill.Rev.Stat.1987, ch. 38, par. 12-16.) Smith was sentenced to four years' probation, a condition of the probation being that he serve a term of periodic imprisonment. Smith's probation was revoked in 1992, due to his failure to comply with its terms. (Ill.Rev.Stat.1991, ch. 38, par. 1005-6-4.) Smith was sentenced to five years' imprisonment on the underlying offense of aggravated criminal sexual abuse, with credit for 119 days served. Defendant appeals, alleging there are ambiguities in the record regarding the amount of credit to which he is entitled, and this case ought be remanded to the circuit court for a determination of the amount of credit due. We disagree and affirm.

After his plea of guilty, defendant was sentenced to four years of intensive probation, ordered to obtain counseling, and ordered to serve a term of periodic imprisonment for 24 consecutive weekends, with credit for 31 days served. The periodic imprisonment was to be served beginning on September 9, 1988, and extending through the weekend of December 2, 1988.

In 1991, a petition to revoke probation was filed due to defendant's failure to report to the court services department. Later, at the probation revocation hearing, the State presented the testimony of both probation officers to whom defendant had been assigned. The probation officers testified that defendant had failed to report to them on numerous occasions, had moved from one county to another without obtaining permission or even notifying the probation department, and had failed to obtain court-mandated counseling. The petition was found proved, and defendant's probation was revoked.

On March 11, 1992, defendant was sentenced to five years' imprisonment on the underlying offense. The transcript reflects the circuit court orally ordered the defendant be given credit for the 31 days served. However, some additional discussion must have occurred, which was not transcribed, because the sentencing order provided defendant was to be given credit for 119 days served. The 119 days were apparently calculated as the total of the 31 days spent in custody prior to the 1988 sentencing, 87 days during the term of periodic imprisonment, and one day spent in custody prior to the probation revocation hearing. Defendant's sole contention on appeal is the matter must be remanded for a hearing regarding sentence credit because the ambiguities in the record make it impossible to determine the term of periodic imprisonment he actually served. We disagree.

At the 1988 sentencing hearing the trial court ordered the defendant to serve "a period of incarceration at periodic imprisonment for six months," specifying the defendant was to report for imprisonment on Fridays, and be released on Sundays, commencing on September 9, 1992. In the written order, the circuit court required the defendant to serve "24 consecutive weekends, with credit for 31 days served ... imprisonment to commence on Friday, September 9, 1988 and to continue through each and every weekend thereafter, through and including the weekend of December 2, 1988." The defendant argues the statements are conflicting and result in an ambiguity in the record regarding the amount of time actually served by the defendant. The defendant argues he may have served six months' periodic imprisonment, entitling him to 180 days' credit, or 24 weekends' periodic imprisonment, entitling him to 164 days' credit. The defendant additionally argues the specified dates of the periodic imprisonment are inconsistent with the number of weekends he was ordered to serve.

The issue of ambiguities in sentencing is generally brought before the court when the defendant alleges there is an inconsistency between the oral pronouncement of the circuit court and the written order of commitment, and the defendant files a motion to request the more favorable of the two be enforced. The analysis employed by such cases is equally applicable to the present case.

It is the oral pronouncement of the judge which is the judgment of the court. The written order of commitment is merely evidence of the judgment of the court. (People v. Williams (1983), 97 Ill.2d 252, 310, 73 Ill.Dec. 360, 388, 454 N.E.2d 220, 248.) When the oral pronouncement of the court and the written order are in conflict, the oral pronouncement of the court controls. (Spriggs v. United States (9th Cir.1955), 225 F.2d 865, 868; Watkins v. Merry (10th Cir.1939), 106 F.2d 360, 361.) However, often apparent inconsistencies may be resolved by examining the record as a whole to determine whether the written order expresses the intent of the judge's oral pronouncement, or conforms to the oral pronouncement's sense and meaning but is merely set forth with greater specificity. Where looking at the record as a whole, if the written order is not inconsistent with the intent, sense and meaning of the circuit court's oral pronouncement, the written order will be enforced.

When the written order of judgment is arguably inconsistent with an oral pronouncement of the court in rendering a judgment, but is consistent with the court's intent in rendering the judgment, the written order will be enforced. In People v. Hairston (1990), 207 Ill.App.3d 674, 152 Ill.Dec. 656, 566 N.E.2d 343, the defendant alleged the circuit court, in its oral pronouncement, stated the defendant was to be sentenced to eight years' imprisonment, yet the commitment order provided for 10 years' imprisonment. Accordingly, the defendant argued, on appeal, that the commitment order ought be amended to reflect an eight-year term of incarceration. The appellate court disagreed, noting that while the circuit court had made reference to an eight-year sentence in its oral pronouncement, it had begun by stating the defendant was to receive a 10-year sentence, and made consistent references to a 10-year sentence throughout the oral pronouncement. Thus, the appellate court affirmed the defendant's 10-year sentence, holding, "[i]n the absence of a clear conflict between the commitment order and the trial court's judgment, the commitment order need not be amended." (Emphasis added.) Hairston, 207 Ill.App.3d at 681, 152 Ill.Dec. at 660, 566 N.E.2d at 347.

The Federal judiciary has further expounded upon this issue in United States v. Gibas (7th Cir.1964), 328 F.2d 833. Gibas alleged the circuit court's oral pronouncement provided for a three-year term of imprisonment, yet the written order provided for a six-year term of imprisonment. Gibas filed a motion with the district court requesting the written order be amended to conform with the oral pronouncement of the court. (Gibas, 328 F.2d at 834.) Gibas' motion was denied and he appealed.

Gibas had been convicted of 35 counts of a multiple-count indictment. In orally rendering judgment, the circuit court sentenced defendant to " 'one year on each of the counts of the indictment upon which he was found guilty, the said sentence to be served as follows.' " (Gibas, 328 F.2d at 834.) The circuit court then detailed which sentences were to be served concurrently and consecutively. Apparently, the statements regarding concurrent and consecutive sentences would have the effect of providing for a total sentence of three years; however, the circuit court concluded by stating, " 'which makes a total of six years.' " (Gibas, 328 F.2d at 834.) The written order provided for a sentence of six years. The Seventh Circuit Court of Appeals found the conclusory statement made by the district court was evidence of an intent to sentence the defendant to six years; thus, although the written order of judgment apparently did not conform to the district court's oral judgment regarding the terms to be served concurrently and consecutively, it reflected the intent of the district court. Hence, the Seventh Circuit affirmed the judgment of the district court. Gibas, 328 F.2d at 834-35.

Likewise, when the written order of judgment is more specific than the oral pronouncement of the court, the written order will be enforced if it is consistent with the sense and meaning of the court's oral pronouncement. In People v. Tackett (1985), 130 Ill.App.3d 347, 85 Ill.Dec. 723, 474 N.E.2d 451, defendant's probation was revoked, and the court ordered defendant to serve an indeterminate sentence of not less than 6 2/3 years and not more than 20 years, with credit for time spent in custody. (Tackett, 130 Ill.App.3d at 347, 85 Ill.Dec. at 724, 474 N.E.2d at 452.) With respect to sentence credit, the written order provided defendant was to be given credit for the days defendant was incarcerated, but not for time served on probation but not in custody. (Tackett, 130 Ill.App.3d[242 Ill.App.3d 404] at 348, 85 Ill.Dec. at 724, 474 N.E.2d at 452.) The defendant argued the oral pronouncement of the court and the written order were inconsistent and the written order should be amended to conform to the oral pronouncement. The appellate court noted a court may not increase a sentence once it had been imposed by denying credit for time served on probation. (Tackett, 130 Ill.App.3d at 349, 85 Ill.Dec. at 724-25, 474 N.E.2d at 452-53.) However, the appellate court affirmed the denial of credit for time served on probation, stating:

"[it] appears from the entire...