People v. Willingham

• Decision Date: 27 May 1976
• Docket Number: No. 13089,13089
• Citation: 349 N.E.2d 120,38 Ill.App.3d 612
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Milton V. WILLINGHAM, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 120

349 N.E.2d 120

38 Ill.App.3d 612

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Milton V. WILLINGHAM, Defendant-Appellant.

No. 13089.

Appellate Court of Illinois, Fourth District.

May 27, 1976.

Richard J. Wilson, Deputy State Appellate Defender, Richard J. Geddes, Asst. State Appellate Defender, Springfield, for defendant-appellant.

Edwin R. Parkinson, State's Atty., Morgan County, Jacksonville, for plaintiff-appellee.

GREEN, Justice.

Defendant Milton V. Willingham was charged in the Circuit Court of Morgan County by a two count indictment. The counts alleged two forgeries with separate victims but both occurring on April 28, 1973. On October 1, 1973, defendant entered a plea of guilty 'to forgery as charged in the indictment.' Judgment was then 'entered thereon.' On November 30, 1973, defendant was sentenced to 3 years probation. On December 3, 1974, his probation was revoked and he was sentenced to consecutive terms of imprisonment of 3 years and 4 months to 10 years as to Count I and 2 years to 6 years as to Count II. The court ordered that he not receive credit for time spent under sentence of probation. Defendant appeals from the order of sentence.

The information presented to establish a factual basis for the plea of guilty indicated that defendant made arrangements to purchase an automobile from a dealer. At the time of purchase he delivered to the dealer two forged checks, one payable to the dealer for the purchase price of the car and the other payable to the Secretary of State for a car license and title transfer. Defendant contends that the trial court erred 'in entering judgment on more than one count of the indictment since both forgery charges arose from the same transaction,' in imposing consecutive sentences, and in not giving the defendant credit for the time he served on probation.

Defendant's conviction became appealable under Supreme Court Rule 604(b) (Ill.Rev.Stat.1973, ch. 110A, par. 604(b)) when he was sentenced to probation on November 30, 1973. No appeal was taken from that order within the 30 day period provided by Supreme Court Rule 606(b) (Ill.Rev.Stat.1973, ch. 110A, par. 606(b)). He may not now make direct attack on the conviction by notice of appeal from the order of December 3, 1974 revoking probation and imposing sentence (People v. Fitzgerald, 25 Ill.App.3d 973, 324 N.E.2d 13). Only the latter order is under consideration here.

At all pertinent times until after the defendant was sentenced to probation, the Unified Code of Corrections provided in Section 5--8--4(c) with respect to consecutive sentences that:

'The aggregate minimum period of consecutive sentences shall not exceed twice the lowest minimum term authorized under Section 5--8--1 for the most serious felony involved. * * *' (Ill.Rev.Stat.1972, Supp., ch. 38, par. 1005--8--4(c)).

At all pertinent times prior to defendant's sentence to probation, forgery was a Class 3 Felony (Ill.Rev.Stat.1973, ch. 38, par. 17--3(d)) for which the lowest minimum term of imprisonment under Section 5--8--1 (Ill.Rev.Stat.1973, ch. 38, par. 1005--8--1) was one year. Thus, under the statutory sentencing scheme in force at that time, the highest aggregate minimum term that could be imposed for a consecutive sentence under these forgery charges was 2 years rather than the aggregate of 5 years and 4 months imposed.

Similarly, at the time pertinent, Section 5--6--4(h) of the Unified Code of Corrections (Ill.Rev.Stat.1972, Supp., ch. 38, par. 1005--6--4(h)) stated that upon resentencing after revocation of probation, the defendant was entitled to credit against a sentence of imprisonment for time served on probation.

By the time probation was revoked, Sections 5--8--4(c) and 5--6--4(h) had been amended to permit, in a proper case, the sentences here imposed. Neither amendment went into effect until after defendant was placed on probation (see People v. Goetz, 27 Ill.App.3d 680, 327 N.E.2d 516). To construe these amendments to authorize the sentences imposed here would give them a constitutionally impermissible Ex post facto application. (People v. Johnson, 133 Ill.App.2d 818, 263 N.E.2d 901). It would also violate Section 5--6--4(e) of the Unified Code of Corrections (Ill.Rev.Stat.1973, ch. 38, par. 1005--6--4(e)) which limits the sentence imposed on revocation of probation to one that could have been imposed when the sentence of probation was ordered. The trial court thus erred in denying defendant credit for time spent on probation and in ordering consecutive sentences with an aggregate minimum sentence in excess of 2 years.

When faced with the problem of similarly excessive aggregate minimum sentences, the Supreme Court reversed and ordered the sentences reduced to concurrent sentences in People v. Nicks, 62 Ill.2d 350, 342 N.E.2d 360, and People v. Morgan, 59 Ill.2d 276, 319 N.E.2d 764, and reversed and remanded for resentencing in People v. Williams, 60...