People v. Hull , 36 Ill. App. 3d 152 ( 1976 )

36 Ill. App. 3d 152 (1976) 342 N.E.2d 279

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
ROGER L. HULL, Defendant-Appellant.

No. 75-412.

Illinois Appellate Court — Third District.

Opinion filed March 15, 1976.

David L. Thompson, of Winstein, Kavensky, Wallace & Doughty, of Rock Island, for appellant.

William K. O'Connor, State's Attorney, of Cambridge, for the People.

Sentence modified.

Mr. PRESIDING JUSTICE ALLOY delivered the opinion of the court:

This is an appeal from a sentence imposed by the Circuit Court of Henry County which followed a plea of guilty to the charge of battery. Defendant Roger L. Hull was placed on probation for one year. On June 16, 1975, the People filed a petition to revoke defendant's probation. On September 30, 1975, defendant's probation was revoked by the Circuit Court of Henry County and defendant was sentenced to a term of 364 days in an institution other than a penitentiary.

On appeal in this court now, defendant contends that he should have been credited with probation time. The trial court, at the time it sentenced defendant to 364 days, made no statement as to whether or not defendant should be credited with time served on probation. Defendant contends that he should be credited with the time served on probation of 228 days. Under the previous statute, defendant was credited with time served on probation as against the sentence of imprisonment. (People v. O'Meara (1974), 24 Ill. App. 3d 851, 322 N.E.2d 77; People v. Klytta (1974), 24 Ill. App. 3d 472, 321 N.E.2d 323.) The statute was amended on July 1, 1974, to provide that defendant "shall be credited" by the court as against his sentence of imprisonment unless the court orders otherwise. (Ill. Rev. Stat. 1975, ch. 38, § 1005-6-4(a).) The State's Attorney of Henry County agrees with the position taken by the defendant in this case and states that the State will offer no objection to a finding based on the request of defendant for credit of 228 days served on probation.

We agree that, since the trial court made no directive or statement with respect to whether defendant should be credited for time served on probation, the mandatory statutory language controls and defendant is entitled to be credited with time served on probation.

The sentence imposed by the Circuit Court of Henry County is modified to provide that defendant is credited with the time served on probation of 228 days, as against the sentence imposed in this cause of 364 days.

Sentence modified.

STOUDER and BARRY, JJ., concur.