People v. Tedford

• Decision Date: 02 February 1983
• Docket Number: No. 82-747,82-747
• Citation: 112 Ill.App.3d 603,445 N.E.2d 841,68 Ill.Dec. 197
• Parties: , 68 Ill.Dec. 197 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Kurt Alan TEDFORD, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 841

445 N.E.2d 841

112 Ill.App.3d 603, 68 Ill.Dec. 197

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Kurt Alan TEDFORD, Defendant-Appellant.

No. 82-747.

Appellate Court of Illinois Second District.

Feb. 2, 1983.

Schlueter, Eklund, Olson & Barrett, Gregory E. Barrett, Rockford, for defendant-appellant.

Daniel Doyle, State's Atty., Robert G. Gemignani, Asst. State's Atty., Rockford, Phyllis J. Perko, Martin P. Moltz, State's Attys., Appellate Service Com'n, Elgin, for plaintiff-appellee.

HOPF, Justice:

Defendant Kurt Tedford was charged by a two-count information with involuntary manslaughter (Ill.Rev.Stat.1979, ch. 38, par. 9-3) and aggravated battery (Ill.Rev.Stat.1979, ch. 38, par. 12-4(b)(8)). After a bench trial in Winnebago County defendant was found guilty on both counts. On appeal he alleges error only in sentencing.

Defendant was sentenced to 15-months probation on each count, to be served consecutively. A condition of each probationary sentence was that six months be served in county jail, also to be served consecutively.

Defendant makes three arguments on appeal. First, he contends the trial court erred in sentencing him to multiple terms of probation running consecutively; secondly, he contends that he cannot be required to serve a period of more than six months confinement as a condition of probation. Defendant's final contention is that it was error for the trial court to deny him credit for time served after his arrest.

Briefly stated, the facts of this case show that on July 25, 1981, defendant was charged by criminal complaint with the involuntary manslaughter of Dean Rawson, and the aggravated battery of the victim's daughter, Julie Rawson. After a finding of probable cause the State filed an information charging defendant with involuntary manslaughter and aggravated battery. After a bench trial defendant was found guilty of both crimes. On July 22, 1982, a sentencing hearing was held. Defendant was sentenced to 15 months probation on each of the two counts. The trial court made a specific finding that the two offenses were not committed as part of a single course of conduct. A condition of each probation sentence was that the defendant serve six months in the county jail and the trial court specifically stated that the sentences were to run consecutively, both as to probation and jail time, one after the other.

At the sentencing hearing the court stated that the purpose for these sentences was to (1) punish defendant for his crime and deter him from future conduct from the same criminal source; (2) protect the public from having defendant imperil people's lives, and; (3) give defendant a chance to rehabilitate himself. Defendant was advised that if he failed to comply with the probationary terms he would go to the penitentiary.

Defendant's first contention on appeal is that there is a statutory prohibition to his being sentenced to multiple terms of probation that run consecutively when the sentences are imposed at the same time. A controlling provision of the Unified Code of Corrections provides as follows:

"Multiple terms of probation imposed at the same time shall run concurrently." Ill.Rev.Stat.1979, ch. 38, par. 1005-6-2(b).

Thus, it is clear that the trial court erred in imposing consecutive probationary terms for this defendant. It is a rule of statutory construction that in the application and construction of a statute the court give effect to the legislature's intent and that this be accomplished by giving the language of a statute its plain and ordinary meaning. (Clement v. O'Malley (1981), 95 Ill.App.3d 824, 51 Ill.Dec. 119, 420 N.E.2d 533.) It has also been held that the language of a statute itself is the best indication of the intent of the drafters, and that where that intent can be gleaned from the language of the statute it will be given effect without resorting to other aids for construction. (People v. Robinson (1982), 89 Ill.2d 469, 60 Ill.Dec. 632, 433 N.E.2d 674.) We believe the statute requires multiple terms of probation imposed at the same time are to be served concurrently and that the trial court erred in ordering them to be served consecutively.

The State concedes that Ill.Rev.Stat.1979, ch. 38, par. 1005-6-2(b), is controlling. It argues that this court should modify the probation sentences only so that they run concurrently. The State does not concede error with regard to the trial court's imposition of jail terms as a condition of each probation term.

In a case that discusses the statutory provision in issue here, People v. Gischer (1977), 51 Ill.App.3d 847, 9 Ill.Dec. 264, 366 N.E.2d 521, 527, the court discussed the question of whether or not probation sentences can be imposed so that they are served consecutively. However, in Gischer the terms of probation were not imposed at the same time. The court held that it was proper to impose a probation term that would commence upon the termination of previously imposed probation. Therefore the court held that by negative implication of Section 5-6-2(b) of the Code (Ill.Rev.Stat.1979, ch. 38, par. 1005-6-2(b)), the terms were allowed to run consecutively. In the case at bar the terms were imposed at the same time, therefore Gischer is inapposite.

Defendant's second contention on appeal is closely interwoven with that just discussed. He contends that the statutes prohibit the trial court sentencing him to two consecutive six-month jail terms. Ill.Rev.Stat.1979, ch. 38, par. 1005-6-3(d), states:

"The court shall not require as a condition of the sentence of probation or conditional discharge that the offender be committed to a period of imprisonment in excess of six months."

The State responds by arguing that the statute contemplates that only one term of probation has been imposed, and that it should not be applied when two separate terms of probation have been imposed. We disagree. Assuming we can separate the probationary terms from the probationary conditions, we do not think it is logical to have probationary terms that run concurrently and probationary conditions (jail time) that run consecutively.

While it has been held that the determination of terms and the conditions of probation is a judicial function (People v. Brouhard (1972), 53 Ill.2d 109, 290 N.E.2d 206; People v. Love (1980), 83 Ill.App.3d 948, 950, 39 Ill.Dec. 494, 404 N.E.2d 1085), we believe the statute prohibits imposition of a period of...