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Docket No. 102985.
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
TRAVIS WHITFIELD, Appellee.
Opinion filed December 13, 2007.–Modified on denial of
rehearing April 23, 2008.
JUSTICE FITZGERALD delivered the judgment of the court,
Chief Justice Thomas and Justices Kilbride, Garman, and Karmeier
concurred in the judgment and opinion.
Justice Burke dissented, with opinion, upon denial of rehearing,
joined by Justice Freeman.
Defendant, Travis Whitfield, pled guilty to the offense of
aggravated possession of a stolen motor vehicle in the circuit court of
Cook County and was sentenced to a term of probation. Shortly after
sentencing, the State learned that defendant was ineligible for
probation because of his criminal record and moved to vacate the plea.
Defendant’s plea was withdrawn, and he was convicted of possession
of a stolen motor vehicle and sentenced to eight years’ imprisonment.
A divided appellate court concluded that as a matter of fundamental
fairness, the trial court should have considered granting defendant
sentencing credit for the time he spent on probation. 366 Ill. App. 3d
448. We granted the State’s petition for leave to appeal and now
reverse the appellate court’s judgment.
In 2000, the victim, 75-year-old Emmerline Clarkston, hired
defendant and another individual to do electrical work in her
apartment. The project lasted several months, and Clarkston was
home on some occasions when defendant and his partner were
working. When home, Clarkston occasionally left her key ring,
including her car key, hanging on a doorknob so she could locate it
easily. On June 25, 2000, Clarkston’s 1991 Lexus was stolen while
parked in front of her house. She did not give anyone permission to
take her car.
Almost one year later, on May 9, 2001, a police officer performed
a license plate check on a Lexus being driven by defendant, which
revealed that the car was stolen. Defendant was arrested and
subsequently gave an oral statement indicating that he did some work
at Clarkston’s house, took her car key, copied it, and then stole her
Lexus. Defendant admitted that he had been in possession of the car
for approximately one year.
On September 30, 2002, defendant pled guilty to the offense of
aggravated possession of a stolen motor vehicle. Both defendant and
the State waived a presentence investigation. The State advised the
court that defendant had one prior felony conviction for possession of
a stolen motor vehicle in 1987. Relying on this information, the trial
court sentenced defendant to two years’ probation and ordered him to
complete 30 days of community service through the Sheriff’s Work
Alternative Program (SWAP) and pay $500 in restitution to Clarkston
within one year.
On October 7, 2002, the State moved to vacate defendant’s guilty
plea, asserting that defendant’s sentence was void. The facts pled in
the motion demonstrated that the State mistakenly advised the court
that defendant had one prior felony conviction when defendant
actually had two prior felony convictions. Defendant was thus
ineligible for probation and was subject to a mandatory Class X
sentence. On October 16, 2002, the parties appeared on the State’s
motion to vacate and defense counsel requested a continuance to
research the voidness issue.
Defense counsel requested additional continuances over a sixmonth period while waiting for certain trial transcripts. On May 15,
2003, defendant moved to vacate the judgment against him and
withdraw his guilty plea. Defendant’s motion was allowed on June 5,
2002, and, at that point, approximately eight months had passed since
defendant was initially placed on probation. There is no information
in the record as to whether defendant complied with his probation
conditions during that eight-month period.
The matter proceeded to a bench trial, and defendant was
convicted of possession of a stolen motor vehicle. At sentencing, the
trial court found that defendant was subject to a mandatory Class X
term. The court then sentenced defendant to eight years in prison. The
record does not indicate that the trial court considered giving
defendant credit for the time he spent on probation for the instant
offense, nor does the record show that defendant asked for such
On appeal, defendant asserted that the trial court erred in failing
to consider whether he should receive sentencing credit for the time
he spent on probation. Defendant admitted that there is no statutory
provision specifically requiring the court to make such a consideration
under the circumstances of his case. Defendant maintained, however,
that he was entitled to this consideration based on section 5–8–7(b)
of the Unified Code of Corrections (Code) (730 ILCS 5/5–8–7(b)
(West 2004)), which mandates that a court apply credit for all time
spent in custody prior to sentencing, and section 5–6–4(h) of the
Code, which permits a court, in its discretion, to give a defendant
credit for time spent on probation after a defendant violates probation
and is sentenced to prison (730 ILCS 5/5–6–4(h) (West 2004)). The
appellate court, with one justice dissenting, concluded that neither of
these statutes applied to defendant, but it still felt compelled to grant
defendant some relief on grounds of fundamental fairness. The
“[W]ere we to simply affirm the decision below without
remand for further consideration of defendant’s final sentence,
we would be creating, in effect, two classes of similarly
situated defendants treated in vastly different manners. That is,
under our statutory scheme as evident in section 5–6–4(h), a
defendant originally placed on probation but who then violates
its terms and requires the trial court to again become involved
in his cause to impose a prison sentence has the potential
opportunity to receive some consideration for his time spent
on probation. Meanwhile, a defendant (in the same shoes as
defendant here) originally placed on probation and who
complies with every one of its terms, participates in the
community without further police encounters or legal
difficulties, and meets all other conditions for a period of time
would receive absolutely no consideration at all, simply
because his probation was later declared void rather than
This is inherently, not to mention fundamentally, unfair.
Ultimately, we are encroaching upon due process rights.” 366
Ill. App. 3d at 461-62.
The majority remanded the cause for the trial court to consider
whether defendant should receive credit toward his prison sentence
for the time he spent on probation.
The dissent concluded that defendant was not entitled to this
consideration because his probation was void at its inception and
should be treated as if it never existed. Further, the dissent did not
agree that the issue invoked due process or fundamental fairness
concerns because defendant did not identify any statutory or
constitutional right to receive credit. 366 Ill. App. 3d at 465-67
(O’Malley, J., dissenting). According to the dissent, defendant was
“the fortuitous beneficiary of freedom to which he was not entitled.”
366 Ill. App. 3d at 468 (O’Malley, J., dissenting). We granted the
State’s petition for leave to appeal.
The State argues in its brief to this court that defendant forfeited
review of the credit issue on appeal because he never requested credit
for the time he spent on probation during the sentencing proceeding
and did not raise the issue in posttrial motions. Defendant does not
dispute the State’s assertion that the claim was forfeited. However,
The appellate court stated repeatedly in its opinion that defendant
complied with the terms of his probation. The record, however, does not
provide any information regarding the status of defendant’s probation.
defendant maintains that the forfeiture rule was properly relaxed by
the appellate court.
We need not address the forfeiture argument raised by the State,
or defendant’s arguments in reply, because the State did not include
the forfeiture issue in its petition for leave to appeal to this court.
Supreme Court Rule 315(b) states that a petition for leave to appeal
must contain “a statement of the points relied upon for reversal of the
judgment of the Appellate Court.” 177 Ill. 2d R. 315(b)(3). Rule
315(b) also requires “a short argument (including appropriate
authorities) stating why review by the Supreme Court is warranted
and why the decision of the Appellate Court should be reversed or
modified.” 177 Ill. 2d R. 315(b)(5). The State’s petition for leave to
appeal does not meet either of these requirements with respect to the
issue of forfeiture. Accordingly, we decline to consider the State’s
forfeiture argument, as it was not properly preserved for our review.
See People v. Campa, 217 Ill. 2d 243, 269 (2005), citing People v.
Carter, 208 Ill. 2d 309, 318 (2003); see also People v. Williams, 193
Ill. 2d 306, 347 (2000) (“The rules of waiver are applicable to the
State as well as the defendant in criminal proceedings, and the State
may waive an argument that the defendant waived an issue by failing
to argue waiver in a timely manner”). We turn to the issues properly
raised by the State.
Statutory or Precedential Authority
The parties agree that there is no statutory authority that would
require the lower court to consider giving defendant sentencing credit
for the time he spent on probation. The parties also agree that there
is no precedent for the appellate court’s actions. In fact, the State
argues that the appellate court’s decision to remand the matter for
consideration of such credit stands in direct conflict with previous
decisions of this court and cites to People v. Wade, 116 Ill. 2d 1
(1987), People v. Arna, 168 Ill. 2d 107 (1995), and People v. Judd,
396 Ill. 211 (1947), as support. Defendant counters that these cases
are distinguishable and irrelevant to the issue presented in this case.
We disagree with defendant’s contention that the cases cited by
the State have no bearing on the case before us. Both Arna and Judd
set forth general legal principles that can be applied to the issue we
now face. In Arna, the defendant was sentenced to concurrent terms
of imprisonment when consecutive sentences were mandatory
pursuant to statute. Arna espouses the rule that a sentence which is
contrary to a statutory requirement is void and can be corrected at any
time. Arna, 168 Ill. 2d at 113. In Judd, the defendants were sentenced
under an invalid statute and served four years in prison. The
defendants were resentenced, but were not given credit for the time
they had already served because there was no statute then in effect
allowing for such credit. Judd, 396 Ill. at 212. The law which guided
Judd’s outcome has since been changed and defendants are now
entitled to credit for time spent in prison upon resentencing for the
same offense. See 730 ILCS 5/5–8–7 (West 2004); North Carolina v.
Pearce, 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969).
Nevertheless, the Judd opinion sets forth the relevant legal principle
that courts are bound by the laws in effect when fashioning judgments.
The Judd court stated: “[T]his court cannot make laws. It is
authorized only to interpret them.” Judd, 396 Ill. at 212-13.
Wade provides more specific guidance to this court, as it presents
a factual scenario that is similar to the one now before us. In Wade,
the defendant pled guilty to robbery and received probation. Several
months later, it was discovered that the defendant was ineligible for
probation because of his criminal background. The trial court vacated
the probation order and the defendant withdrew his plea and was
convicted. Wade, 116 Ill. 2d at 4. On appeal, the defendant argued
that the trial court erred in failing to give him sentencing credit for the
time he spent on probation. The appellate court concluded that the
defendant was not entitled to credit because his probationary sentence
was void. People v. Wade, 137 Ill. App. 3d 878, 882 (1985). The
defendant did not appeal the appellate court’s judgment regarding
sentencing credit to this court. Instead, the defendant argued that the
trial court lost jurisdiction over him 30 days after imposing the
sentence of probation and was without authority to vacate his
sentence months later when the State realized its error. This court
rejected the defendant’s claim and affirmed the appellate court, finding
that the defendant’s sentence could be set aside at any time because
it was void. Wade, 116 Ill. 2d at 5-6. The Wade court stated: “The
legislature has authority to define crimes and establish the nature and
extent of criminal penalties, and a court exceeds its authority if it
orders a lesser sentence than is mandated by statute, unless ‘the
[mandated] penalty shocks the conscience of reasonable men.’ ”
Wade, 116 Ill. 2d at 6, quoting People ex rel. Ward v. Salter, 28 Ill.
2d 612, 615 (1963).
Wade makes clear that defendant’s sentence of probation is void.
Wade also reinforces the notion that courts are not authorized to
fashion sentences that do not conform to statutory guidelines. Because
defendant’s original sentence of probation is void, and because there
is no statute that permits courts to give credit for time spent on a void
probation, it would seem defendant is not entitled to any consideration
towards his current prison sentence for the time he spent on
Our analysis cannot stop there, however, because the appellate
court found this resolution to be fundamentally unfair and an
encroachment upon defendant’s right to equal protection, and
remanded the matter for the trial court to consider whether defendant
should receive some credit. The State asserts that the appellate court’s
order amounted to an unauthorized use of supervisory power because
there is no constitutional dimension to this case. Defendant disagrees,
and asserts that the trial court violated his constitutional right to equal
protection under the law when it failed to consider the credit issue.
Defendant contends that his right to equal protection has been
violated because he is similarly situated to defendants who are placed
on probation, violate the probation, are sentenced to prison, and then
are given sentencing credit for time spent on probation. Defendant
maintains that probation violators are put in a better position pursuant
to the discretionary sentencing credit provided for under section
5–6–4(h) of the Code than persons like him who comply with the
terms of their probation and then are sentenced to prison without
receiving any credit for probation time served.
Equal protection guarantees that similarly situated individuals will
be treated in a similar fashion, unless the government can demonstrate
an appropriate reason to treat them differently. Andrew N.B., 211 Ill.
2d at 466. In cases where fundamental rights are not at issue, we
employ so-called rational basis scrutiny and consider whether the
challenged classification bears a rational relationship to a legitimate
governmental purpose. Andrew N.B., 211 Ill. 2d at 466.
Defendant urges us to find that the government has no rational
reason for treating probation violators differently, and even better,
than individuals like himself, who are compliant with probation
conditions. However, we cannot go so far as to apply the rational
basis test in this case because defendant cannot meet the threshold
requirement for an equal protection claim–demonstrating that he and
the group he compares himself to are similarly situated. Defendant
cannot legitimately be compared to an individual placed on a lawful
probation who violates that probation and is given credit for probation
time which has been completed. This is so because defendant, as a
Class X offender, was mandated to serve a term of imprisonment upon
conviction. Defendant is different from other probationers because his
probation was unlawful and void.
Defendant nevertheless maintains that individuals who have
violated probation and those whose pleas are withdrawn after being
placed on a void probation are similarly situated because they are
bound by the same “statutory restrictions,” but are treated differently
for arbitrary reasons once their probation is terminated and they are
sentenced to prison. Defendant’s argument lacks merit, however,
because a defendant placed on a void probation is not bound by the
conditions of the probation. Any attempt to revoke probation or
punish the defendant for noncompliance would have no effect. People
v. McCarty, 94 Ill. 2d 28, 40 (1983) (“the order of probation based on
the conviction was void; the two-year sentence based on revocation
of this probation was likewise of no effect”).
With respect to this case, the record demonstrates that defendant
was on probation for approximately one week when the State realized
its mistake and moved to vacate the plea. Defendant maintains that he
complied with the terms of his probation, “believed” he was on
probation for eight months while the case was continued, and should
get credit for that time. First, we note there is nothing in the record
that tends to prove or disprove defendant’s assertions of compliance.
However, whether defendant complied, or believed he was required
to, is irrelevant because defendant was not actually bound by the terms
of his probation and could not have been penalized for failure to
comply with those terms throughout that eight-month period.
Accordingly, defendant was not similarly situated to other
probationers and his equal protection claim must fail.
Defendant next contends that his constitutional right to be free
from double jeopardy was violated because he was twice punished for
the same offense and was not given credit for the probation he served.
The State maintains its position that defendant’s constitutional rights
are not at issue in this case, as none of defendant’s rights were
violated when he was resentenced without receiving credit. Further,
the State points out that the appellate court did not consider double
jeopardy because defendant did not properly raise the issue in the trial
or appellate courts; therefore, the State asserts that the double
jeopardy issue is forfeited for our review. The State admits that
defendant discussed double jeopardy in his reply brief to the appellate
court, but argues that the claim was cursory, consisting of a onesentence reference, and insufficient to overcome forfeiture.
We take judicial notice of the arguments raised in the parties’
respective briefs below, and acknowledge that defendant did not raise
a double jeopardy claim in his opening brief. However, defendant’s
initial failure to raise this argument does not automatically preclude its
consideration. Supreme Court Rule 341(j) permits appellants to reply
to arguments presented in the brief of the appellee. 210 Ill. 2d R.
341(j). A review of the briefs filed below demonstrates that
defendant’s double jeopardy argument was presented in reply to the
State’s assertion that defendant would not be entitled to any credit for
the time he spent on probation towards his prison sentence under any
circumstances, even if defendant served his entire two-year probation
sentence. It would be unfair for us to require an appellant, when
writing his or her opening brief, to anticipate every argument that may
be raised by an appellee. See Oliveira v. Amoco Oil Co., 311 Ill. App.
3d 886, 891 (2000), rev’d in part, 201 Ill. 2d 134 (2002). Thus, we
hold that defendant’s double jeopardy claim was not forfeited, as it
was properly raised in response to the State’s argument. See Van
Meter v. Darien Park Dist., 207 Ill. 2d 359, 378-39 (2003), (denying
the defendants’ motion to strike an argument raised for the first time
in the plaintiffs’ reply brief because the argument was an answer to
arguments advanced by the defendants).
Defendant cites North Carolina v. Pearce to support his
contention that his right to be free from double jeopardy has been
violated. There, the United States Supreme Court stated: “We think
it is clear that this basic constitutional guarantee [to be free from
double jeopardy] is violated when punishment already exacted for an
offense is not fully ‘credited’ in imposing sentence upon a new
conviction for the same offense. *** We hold that the constitutional
guarantee against multiple punishments for the same offense
absolutely requires that punishment already exacted must be fully
‘credited’ in imposing sentence upon a new conviction for the same
offense.” Pearce, 395 U.S. at 718-19, 23 L. Ed. 2d at 665, 89 S. Ct.
at 2077. Defendant also cites to several federal court cases which
support the proposition that, pursuant to Pearce, a defendant should
receive credit toward a subsequent prison term for probation time
served on the same offense. See United States v. Martin, 363 F.3d 25,
37 (1st Cir. 2004); United States v. Carpenter, 320 F.3d 334, 345
n.10 (2d Cir. 2003); United States v. McMillen, 917 F.2d 773, 777
(3d Cir. 1990).
The State, in turn, directs our attention to Illinois cases which
have held that double jeopardy principles do not require that a
defendant be given credit for time spent on probation. In these cases,
the appellate court reasoned that the rule set forth in Pearce does not
apply to probation credit because probation is not the punitive
equivalent of incarceration. See People v. Linzy, 45 Ill. App. 3d 612,
614-15 (1977); People v. Calloway, 44 Ill. App. 3d 881, 884 (1977);
People v. Williams, 42 Ill. App. 3d 574, 576-77 (1976); but see In re
K.J.M., 168 Ill. App. 3d 564, 567-68 (1988).
Both the United States and Illinois constitutions provide that no
person shall be put in jeopardy twice for the same criminal offense.
U.S. Const., amend. V; Ill. Const. 1970, art. I, §10; People v.
Pinkonsly, 207 Ill. 2d 555, 564 (2003). The double jeopardy clause
protects a defendant from: (1) a second prosecution after an acquittal;
(2) a second prosecution after a conviction; and (3) multiple
punishments for the same offense. People v. Gray, 214 Ill. 2d 1, 6
(2005). We now must determine whether defendant would be subject
to multiple punishments for the same offense if he is not given
sentencing credit for the time he spent on probation.
Pearce may be read, and has been read by some, to support the
proposition that a defendant is entitled to receive credit toward his
prison sentence for probation time served on the same offense. See
Martin, 363 F.3d at 37; Carpenter, 320 F.3d at 344 n.10; McMillen,
917 F.2d at 777; In re K.J.M., 168 Ill. App. 3d at 567-68. We believe
that this interpretation of Pearce extends the scope of the opinion
beyond the facts actually contemplated by the Court. In Pearce, the
defendant was convicted of assault with intent to commit rape and
sentenced to a term of 12 to 15 years in prison. His conviction and
sentence were ultimately reversed and he was resentenced to eight
years. The defendant was not given credit for the prison time he
already served under his original sentence. On appeal to the Supreme
Court, the defendant asserted that the trial court’s failure to give him
credit for the prison time he served was unconstitutional under double
jeopardy principles. The Supreme Court agreed and offered the
“We think it is clear that this basic constitutional guarantee
is violated when punishment already exacted for an offense is
not fully ‘credited’ in imposing sentence upon a new
conviction for the same offense. The constitutional violation
is flagrantly apparent in a case involving the imposition of a
maximum sentence after reconviction. Suppose, for example,
in a jurisdiction where the maximum allowable sentence for
larceny is 10 years’ imprisonment, a man succeeds in getting
his larceny conviction set aside after serving three years in
prison. If, upon reconviction, he is given a 10-year sentence,
then, quite clearly, he will have received multiple punishments
for the same offense.*** Though not so dramatically evident,
the same principle obviously holds true whenever punishment
already endured is not fully subtracted from any new sentence
imposed.” Pearce, 395 U.S. at 718, 23 L. Ed. 2d at 665, 89 S.
Ct. at 2077.
The Court then added the following footnote:
“We have spoken in terms of imprisonment, but the same
rule would be equally applicable where a fine had been
actually paid upon the first conviction. Any new fine imposed
upon reconviction would have to be decreased by the amount
previously paid.” Pearce, 395 U.S. at 718 n.12, 23 L. Ed. 2d
at 665 n.12, 89 S. Ct. at 2077 n.12.
The Pearce Court considered credit for prison time served and, in
dicta, for fines paid, but the Court was not called upon to consider the
factual circumstances now before us. Thus, while the Pearce opinion
may provide guidance, it stops short of resolving the issue.
Our appellate court recognized this nuance when previously faced
with the issue defendant now presents. See Williams, 42 Ill. App. 3d
at 577 (“We do not deem the opinion [Pearce] to have ruled that time
spent under the ‘clemency’ of probation, although having a ‘mild and
ambulatory’ punitive aspect, is constitutionally required to be equated
to and credited upon subsequent incarceration imposed for the same
offense”); Calloway, 44 Ill. App. 3d at 884 (“the deprivations of
probation are so incomparable to those of imprisonment that no credit
need be given”); Linzy, 45 Ill. App. 3d at 614 (expressing agreement
with the holding in Williams). In People v. Wilbur, 50 Ill. App. 3d 65,
68-69 (1977), the appellate court outlined the reasons why probation
and imprisonment should not be treated the same for double jeopardy
purposes in spite of the Pearce Court’s holding. The court noted that
the purpose of probation is to avoid imprisonment and give criminal
defendants the opportunity to reform themselves, whereas
imprisonment serves to protect the public and provide strict
correctional treatment. Wilbur, 50 Ill. App. 3d at 68-69. Furthermore,
while a person on probation faces some restrictions on personal liberty
and movement, the confinement experienced is much different from
that of confinement in prison. Wilbur, 50 Ill. App. 3d at 68.
The Wilbur court emphasized these points by quoting two federal
court opinions. In Kaplan v. Hecht, 24 F.2d 664-65 (2d Cir. 1928),
the court stated: “ ‘[T]he purpose [of probation] is to avoid
imprisonment so long as the guilty man gives promise of reform.
Clearly, therefore, probation is not intended to be the equivalent of
imprisonment.’ ” Later, in Hall v. Bostic, 529 F. 2d 990, 992 (4th Cir.
1975), the court declared: “A person does not serve a prison sentence
while on probation or parole any more than he does while free on bail.
In both instances, there are certain restrictions generally on the
person’s movements but the person’s condition *** is ‘very different
from that of confinement in a prison.’ ” After reviewing these cases,
the Wilbur court concluded that “probation cannot and should not be
equated with imprisonment for purposes of the prohibition against
double jeopardy.” Wilbur, 50 Ill. App. 3d at 69; but see K.J.M., 168
Ill. App. 3d at 567-58; Martin, 363 F.3d at 37-38; Carpenter, 320
F.3d at 345 n.10; McMillen, 917 F.2d at 777.
The distinction between probation and imprisonment recognized
by some federal courts and our appellate court has long been
acknowledged by this court as well. In People ex rel. Barrett v.
Bardens, 394 Ill. 511, 516-17 (1946), this court stated: “Probation is
a substitute for imprisonment. A primary purpose of the probation
system is to give to defendants classified by the Probation Act, who
have pleaded guilty or have been proved so, an opportunity for
reformation, provided the trial court be satisfied there is reasonable
ground to expect both that the defendant will be reformed and that the
interests of society will be subserved. [Citation.] A sentence to
imprisonment in the penitentiary cannot be synonymous with a grant
of probation entitling a convicted defendant to escape a penalty of
imprisonment.” Later, in People ex rel. Ward v. Moran, 54 Ill. 2d 552,
556 (1973), this court reiterated the principle set forth in Bardens and
stated that “[p]robation and imprisonment have been classified as
penal sanctions [citation], but they are qualitatively distinct.” More
recently, in People v. Williams, 179 Ill. 2d 331, 335-36 (1997), we
stated that probation and imprisonment are “inconsistent” because
“[p]robation is a substitute for imprisonment that gives offenders an
opportunity for reformation while allowing them to retain their
freedom. [Citation.] A prison sentence, however, is imposed upon
those whose crime and past behavior necessitate removal from
Probation has been described by our appellate court as a form of
“clemency” and by this court as a “privilege.” People v. Henderson,
2 Ill. App. 3d 401, 405 (1971); People v. Allegri, 109 Ill. 2d 309, 314
(1985). It is clear that probation is not a “punishment” in the same
sense as imprisonment is a punishment. Indeed, were it otherwise, our
General Assembly, whose legislative enactments are presumed to be
constitutional (People v. Ramsey, 192 Ill. 2d 154, 157 (2000)), would
not have forged a distinction between prison and probation such that
the credit for time spent in prison is mandatory and the credit for time
spent on probation is discretionary (730 ILCS 5/5–8–7(b), 5–6–4(h)
(West 2004)). Accordingly, we find that a defendant sentenced to
probation, and then sentenced to imprisonment for the same offense,
is not subjected to an unconstitutional second punishment for double
jeopardy purposes and, therefore, is not entitled to credit for time
spent on probation. This conclusion is particularly cogent in this case,
where defendant was placed on a void probation in the first instance.
We are aware that this conclusion stands in conflict with some
decisions of the federal circuit courts (Martin, 363 F.3d at 37-38;
Carpenter, 320 F.3d at 345 n.10; McMillen, 917 F.2d at 777), but we
are not bound by them (Bowman v. American River Transportation
Co., 217 Ill. 2d 75, 91 (2005)). We are also aware that this conclusion
can be construed as contrary to that of our appellate court in In re
K.J.M., 168 Ill. App. 3d 564, 567-68 (1988), where the court held
that, under Pearce, a minor was entitled to full credit for the time she
spent in juvenile detention and juvenile probation toward any
subsequent adjudication after her initial adjudication and sentence
were rendered void. To the extent that K.J.M. conflicts with the
instant opinion, it is overruled.
Our foregoing resolution of the parties’ arguments demonstrates
that the appellate court had absolutely no statutory, precedential, or
constitutional basis for remanding this cause to the trial court. We
agree with the State that the appellate court’s conduct in this case
amounted to an unauthorized use of supervisory authority, which the
appellate court does not possess. People v. Flowers, 208 Ill. 2d 291,
308 (2003); Marsh v. Illinois Racing Board, 179 Ill. 2d 488, 498
Supreme Court Rule 615(b) gives the appellate court significant
powers when reviewing criminal cases. 134 Ill. 2d R. 615(b); Flowers,
208 Ill. 2d at 308. The appellate court is authorized to: “(1) reverse,
affirm, or modify the judgment or order from which the appeal is
taken; (2) set aside, affirm, or modify any or all of the proceedings
subsequent to or dependent upon the judgment or order from which
the appeal is taken; (3) reduce the degree of the offense of which the
appellant was convicted; (4) reduce the punishment imposed by the
trial court; or (5) order a new trial.” 134 Ill. 2d R. 615(b). However,
the court must act within statutory bounds when exercising these
powers. Wade, 116 Ill. 2d at 6; Judd, 396 Ill. at 212-13; see In re
Peak, 59 Ill. App. 3d 548, 551-52 (1978) (stating that courts may not
exceed statutory authority “no matter how desirable or beneficial the
attempted innovation might be”). Furthermore, “[w]hile the appellate
court may exercise significant powers on review of a criminal case
(see 134 Ill. 2d R. 615(b)), it does not possess the same inherent
supervisory authority conferred on our court by article VI, section 16,
of the Illinois Constitution (Ill. Const. 1970, art. VI, §16).” Flowers,
208 Ill. 2d at 308.
In this case, the appellate court overstepped its authority and
issued a supervisory-type order to the circuit court in a misguided
attempt to reach a “fair” outcome. See Marsh v. Illinois Racing
Board, 179 Ill. 2d 488, 498 (1997). Its conduct was improper.
Anticipating this conclusion, defendant asks this court to exercise
its supervisory authority to order the trial court to consider giving him
credit on grounds of fundamental fairness. Defendant points out that
the use of this court’s supervisory authority would be appropriate
because this case presents a rare and unique factual situation.
Our supervisory authority is an “ ‘unequivocal grant of power.’ ”
McDunn v. Williams, 156 Ill. 2d 288, 302 (1993), quoting Attorney
General v. Blossom, 1 Wis. 317, 325 (1853). This authority extends
to “ ‘the adjudication and application of law and the procedural
administration of the courts.’ ” City of Urbana v. Andrew N.B., 211
Ill. 2d 456, 470 (2004), quoting Kunkel v. Walton, 179 Ill. 2d 519,
528 (1997). It does not, however, extend to the legislative branch of
our state government. In re Adoption of L.T.M., 214 Ill. 2d 60, 71-72
(2005) (“The Illinois Constitution mandates that ‘[n]o branch [of
government] shall exercise powers properly belonging to another.’ Ill.
Const. 1970, art. II, §1”). Simply put, “this court cannot make laws.”
Judd, 396 Ill. at 212; see also Henrich v. Libertyville High School,
186 Ill. 2d 381, 394-95 (1998) (“It is the province of the legislature
to enact laws; it is the province of the courts to construe them. Courts
have no legislative powers; courts may not enact or amend statutes”).
The Illinois legislature has not seen fit to provide a mechanism in
the law by which a defendant can receive credit for time spent on a
void probation, and our analysis here demonstrates that there is no
constitutional basis requiring consideration of such a credit. We
cannot, in the exercise of our supervisory authority, order the trial
court to consider giving defendant credit that is not sanctioned by our
laws or required by our constitution. We acknowledge that we could
use our supervisory authority to order the trial court to reduce
defendant’s sentence to set off the time defendant spent on probation.
See People ex rel. Ryan v. Roe, 201 Ill. 2d 552, 557-58 (2002).
However, we decline to exercise our supervisory authority for that
purpose in light of the facts of this case.
For the reasons above, we reverse the appellate court’s judgment
remanding this matter to the trial court for consideration of sentencing
credit for the time defendant spent on a void probation.
Dissent Upon Denial of Rehearing
JUSTICE BURKE, dissenting:
The majority declines to address the State’s contention that
defendant forfeited the sentencing credit issue in this case, stating:
“The State argues in its brief to this court that defendant
forfeited review of the credit issue on appeal because he never
requested credit for the time he spent on probation during the
sentencing proceeding and did not raise the issue in posttrial
motions. Defendant does not dispute the State’s assertion that
the claim was forfeited. However, defendant maintains that the
forfeiture rule was properly relaxed by the appellate court.
We need not address the forfeiture argument raised by the
State, or defendant’s arguments in reply, because the State did
not include the forfeiture issue in its petition for leave to
appeal to this court. Supreme Court Rule 315(b) states that a
petition for leave to appeal must contain ‘a statement of the
points relied upon for reversal of the judgment of the
Appellate Court.’ 177 Ill. 2d R. 315(b)(3). Rule 315(b) also
requires ‘a short argument (including appropriate authorities)
stating why review by the Supreme Court is warranted and
why the decision of the Appellate Court should be reversed or
modified.’ 177 Ill. 2d R. 315(b)(5). The State’s petition for
leave to appeal does not meet either of these requirements
with respect to the issue of forfeiture. Accordingly, we decline
to consider the State’s forfeiture argument, as it was not
properly preserved for our review. See People v. Campa, 217
Ill. 2d 243, 269 (2005), citing People v. Carter, 208 Ill. 2d
309, 318 (2003); see also People v. Williams, 193 Ill. 2d 306,
347 (2000) (‘The rules of waiver are applicable to the State as
well as the defendant in criminal proceedings, and the State
may waive an argument that the defendant waived an issue by
failing to argue waiver in a timely manner’). We turn to the
issues properly raised by the State.” Slip op. at 4-5.
This reasoning is at odds with this court’s decision in Dineen v. City
of Chicago, 125 Ill. 2d 248 (1988).
In Dineen, the court stated the following about when issues not
mentioned in a petition for leave to appeal would be considered by the
“Our Rule 315(b), which is applicable to both civil and
criminal appeals (see 107 Ill. 2d R. 612(b)), requires that the
petition for leave to appeal set out ‘(3) a statement of the
points relied upon for reversal of the judgment of the
Appellate Court; *** and (5) a short argument (including
appropriate authorities) stating why review by the Supreme
Court is warranted and why the decision of the Appellate
Court should be reversed or modified.’ (107 Ill. 2d Rules
315(b)(3), (b)(5).) We have previously held that we need not
consider an argument that a party raises in a later brief but
fails to raise in its petition for leave to appeal. (See, e.g.,
People v. Ward (1986), 113 Ill. 2d 516, 522-23; People v.
Anderson (1986), 112 Ill. 2d 39, 43-44.) In this case, then, the
plaintiffs’ failure to specifically raise in their petition for leave
to appeal the issue of the effect of the City’s retention of the
Illinois Municipal Code provisions may be considered a waiver
of the argument for purposes of the proceedings in this court.
To be sure, the waiver rule is not a jurisdictional
requirement, but a principle of administrative convenience.
This is made clear by Rule 366(a)(5), which provides that a
reviewing court has the authority to ‘enter any judgment and
make any order that ought to have been given or made, and
make any other and further orders and grant any relief ***
that the case may require.’ (107 Ill. 2d R. 366(a)(5); see Hux
v. Raben (1967), 38 Ill. 2d 223, 224 (discussing relationship
between Rule 366(a)(5) and Rule 341(e)(7), pertaining to
contents of briefs on appeal).) Thus, a party’s failure to assert
the argument in the petition for leave to appeal does not
preclude consideration of the question on review, and this
court has previously considered matters that an appellant
omitted from its petition for leave to appeal. (E.g., Genaust v.
Illinois Power Co. (1976), 62 Ill. 2d 456, 462; Schatz v.
Abbott Laboratories, Inc. (1972), 51 Ill. 2d 143, 144-45.) In
both Genaust and Schatz the additional issues that the
appellants raised on review in this court concerned portions of
their causes of action that had been presented to and
adjudicated by the lower courts. The situation here is far
different. In this case, the plaintiffs’ new argument poses an
alternative theory of the case, one that was not discernible
from an examination of the proceedings in the courts below.
Thus, in allowing the plaintiffs’ petition for leave to appeal, we
had no inkling of their new theory of the case, which they then
asserted, following the allowance of their appeal, in support of
the judgment of the circuit court. Clearly, we have the
authority to consider the plaintiffs’ new argument. But the
resolution of the question is by no means clear, and we decline
to consider here an argument that was not presented in the
proceedings below and is raised here as an afterthought. We
note, however, that our decision in this appeal is made without
prejudice to the rights of persons who are not parties to the
present action to raise the same argument in a future case, or
to the rights of the present plaintiffs to raise the argument in
a future case arising from a different cause of action. See
Housing Authority v. YMCA (1984), 101 Ill. 2d 246, 251-52.”
Dineen, 125 Ill. 2d at 265-66.
Thus, according to Dineen, while this court has the authority to
review an issue that is not raised in a petition for leave to appeal, it
retains the discretion not to do so as a matter of administrative
convenience. That discretion, however, is not unbounded or exercised
arbitrarily. Rather, the court will decline to reach an issue not raised
in the petition for leave to appeal when that issue is new to the case
and is “not discernible from an examination of the proceedings in the
courts below.” Dineen, 125 Ill. 2d at 265-66. Moreover, as this court
has noted, review of an issue not specifically mentioned in a petition
for leave to appeal will be appropriate when that issue is “inextricably
intertwined” with other matters properly before the court. Hansen v.
Baxter Healthcare Corp., 198 Ill. 2d 420, 430 (2002).
Applying these principles here, the State’s forfeiture argument
may be considered by the court. The forfeiture issue is not something
new to the appeal, but a matter argued by the parties below and ruled
on by the appellate court at some length. See 366 Ill. App. 3d at 45355. Morever, the forfeiture issue appears “inextricably intertwined”
with the appellate court’s statutory interpretation and voidness
analysis. See 366 Ill. App. 3d at 453-55. In addition, defendant before
this court does not object to the State’s raising the forfeiture issue.
Instead he argues only that the appellate court properly relaxed the
The majority’s reasoning in this case turns the failure to mention
an issue in a petition for leave to appeal into a de facto jurisdictional
bar. Applying the majority’s approach, the court will identify, sua
sponte, an issue not mentioned in the petition for leave to appeal and
will decline to consider it, even if it was addressed at length by the
appellate court below, and even if both parties have addressed the
merits of the issue in their respective briefs. Indeed, that the majority
intends to treat the failure to mention an issue as a jurisdictional bar
is made clear by the fact that the majority recognizes the State’s
omission of the forfeiture issue for the first time on consideration of
the petition for rehearing. When this court filed its original opinion in
this case, the court did not identify any problem with the State’s
petition for leave to appeal and, instead, answered the State’s
forfeiture argument on the merits. Recognizing the omission at this
late date, without any prompting by the parties in their briefs or
petition for rehearing, points to only one reasonable conclusion: the
majority has determined that the court has an obligation to consider
the omission of an issue from a petition for leave to appeal, on its own
motion, at any time–just as the court has an obligation, at any time, to
examine its own jurisdiction.
Treating the failure to raise an issue in a petition for leave to
appeal as a jurisdictional bar may be appropriate as a matter of policy.
I express no opinion on that question. My concern in this case is
simply with providing clarity to the attorneys who file petitions for
leave to appeal in this court. Before barring review of the State’s
forfeiture argument, the majority should address Dineen and Hansen,
explain why it is necessary to treat the omission of an issue from a
petition for leave to appeal as the equivalent of a jurisdictional bar in
this case and, most importantly, provide a clear statement as to what
this court will henceforth expect to be included in petitions for leave
to appeal. Because the majority declines to take these steps, I
JUSTICE FREEMAN joins in this dissent.