As a matter of course, those of us practicing criminal law have learned to live with the restrictions imposed upon our clients by both the sentencing portion of the Uniform Code of Corrections and the client's own past criminal history. Eligibility for the imposition of a period of probation is generally thought to be governed by 730 ILCS 5/5-5-3 et seq. However, all is not lost if a client has in the past been convicted of a Class 2 or greater felony, or even if that client finds him or herself convicted of what we normally have been lead to believe is a "non-probational" offense.
The situation which lead me to this conclusion involved a client with a previous Class 1 felony conviction, and who was found guilty after trial of Aggravated Battery of a Child, also a Class 1 felony(720 ILCS 5/12-4.3). The State argued that 730 ILCS 5/5-5-3(c)(2)(F) prohibited probation in this case, based on the following language: "A period of probation, a term of periodic imprisonment or conditional discharge shall not be imposed for the following offenses: (F) A class 2 or greater felony if the offender had been convicted of a class 2 or greater felony within 10 years of the date on which he committed the offenses for which he is being sentenced." My client's previous conviction apparently placed him within the scope of this language, but for the "specialty penalty provision" of the charge for which he stood convicted.
The "special penalty provision" of 720 ILCS 5/12-4.3, which provides for the probationer's cooperation with the Department of Children and Family Services, among other provisions, was created by the Legislature in a manner analogous to the "first offender" sentencing provision of the Cannabis Control Act, 720 ILCS 550/10. The "first offender" provision of the Cannabis Control Act "was intended to excise marijuana from the Criminal Code by designing appropriate penalties by providing wide discretion in the sentencing court." (People v. Taylor, 18 Ill. App. 3d 480; People v. Glidden, 33 Ill. App. 741)
The court in Glidden focused on the fact that there were statutory distinctions with respect to discharge of a person sentenced under the first offender provision of the Cannabis Control Act and the Uniform Code of Corrections, with discharge under the former not occurring merely with the passage of time, but rather with an affirmative act of the court. Such is the case with the "special penalty provision" of 720 ILCS 5/12-4-3, where such discharge cannot take place until the sentencing court makes a determination of compliance with the conditions of the probation imposed.
The court in Glidden further noted that the purpose of the first offender provision of the Cannabis Control Act was to permit the court to determine whether an adjudication of guilt was to be entered. "By contrast, the defendant's probationary status under the general provisions of the Unified Code of Corrections constitutes a sentence incident to a judgment of conviction."(Glidden, at 745). Therefore, the Glidden court construed the provisions as independent of one another.
Our Supreme Court further clarified this subject in People v. DuMontelle, 71 Ill. 2d 157(1978), holding that the general sentencing provisions of the Unified Code of Corrections do not apply to the first offender provision of the Cannabis Control Act since treatment under the latter does not amount to a conviction. (DuMontelle, at 163). The Court reasoned therefore that neither Section 5-5-3 nor its accompanying provisions govern sentencing under the Act, because conviction is a necessary prerequisite to the application of that section. The Court further noted that the Legislature had specifically excised treatment of first offenders under the Act from the general provisions of the Unified Code of Corrections.
Our Supreme Court in People v. Teschner, 81 Ill 2d 187(1980) further addressed this issue. The defendant in Teschner had been convicted of three Class 2 felonies in less than ten years, and was therefore ineligible for probation under the Unified Code of Corrections for a sentence of probation. The defendant petitioned the court for treatment pursuant to the Dangerous Drug Abuse Act (Ill. Rev. Stat. 1977, Ch. 91 1/2, paragraph 120.1 et seq.), and the trial court found him eligible for probation unde the Act. The State appealed.
The court in Teschner held that, under the Dangerous Drug Abuse Act, probation was not a sentence, and that the word "probation" under the Act carries a different connotation than it does under the Unified Code of Corrections. "Under the language of the Act, one is not "sentenced" to probation as under the Unified Code of Corrections, but rather "placed" on probation. "(Teschner at 193). Such is the case with 720 ILCS 5/12-4/3, which allows the court to place a person who pleads guilty to or has been found guilty of the offense of Aggravated Battery of a Child upon probation upon such terms and conditions as it may require.
Referring to its previous holding in DuMontelle, the Teschner court held that the term "probation" may have different meanings in different statutes, and that the provisions of the Unified Code of Corrections would not be super-imposed upon the provisions of the Dangerous Drug Abuse Act (Teschner at 193).
A similar situation arose in People v. Watters, 231 Ill. App. 3d 370 (Fifth District, 1992). The Defendant was found guilty but mentally ill after a stipulated bench trial of the charge of Aggravated Criminal Sexual Assault, a Class X felony. After a sentencing hearing, the trial court sentenced the defendant to a term of six years in the Illinois Department of Corrections, stating that it believed that it could not grant probation under the current law. The court remanded the defendant to the custody of the Illinois Department of Mental Health, pursuant to Ill. Rev. Stat., 1989, Ch. 91 1/2, par. 1-100 et seq. The Department found the defendant ineligible for civil commitment, and the court allowed him to remain on bond pending appeal.
The Watters court relied upon statutory construction and legislative intent, noting that "whether a statutory provision is interpreted as mandatory or discretionary depends upon the intent of the legislature. "(Watters, at 382; see also People v. Porter, 122 Ill. 2d 64(1988)). The court further noted that "while the language of section 5-5-3(c)(2)(C), on its face, appears to leave no room for discretion under any circumstances, we are mindful that the entire criminal code and each of its sections must be considered in determining legislative intent." (Watters, at 386).
As a last note on Watters, the Supreme Court addressed the "least restrictive alternative" approach to sentencing which was codified in 1978, thus allowing probation to become the preferred disposition of all offenses for which it was authorized. This approach bolsters the argument that the Legislature intended to allow discretion under certain provisions of the Code of Criminal Procedure, including the "special penalty provision" of 720 ILCS 5/12-4.3.
There exists clear authority in Illinois for the proposition that the sentencing provisions of 730 ILCS 5/5-5-3 are not all-inclusive, and that the provisions of that section must be read in conjunction with the other sections of the Code of Criminal Procedure. It is clear from the language of the "specialty penalty provision" of 720 ILCS 5/12-4.3 and other sections of the Code that the Legislature intended to allow a court to defer further proceedings, including sentencing under the Unified Code of Corrections, Section 5/5-5-3, and instead allow an offender to be placed upon probation as a means of rehabilitation for the offense.
In setting forth the terms of such probation, the Legislature granted authority to the trial court to determine that the provisions of Section 5/5-5-3 must yield to the court's authority to tailor an appropriate remedy for the offense of Aggravated Battery of a Child, just as a court has authority to tailor a remedy for a first offender under the Cannabis Control Act and the Illinois Controlled Substances Act. Considering the other range of penalties which can be imposed in situations such as this, arguing for a "special penalty provision" is certainly worth a try in any case in which such a possibility exists.
Kathleen Colton, Attorney at Law