Opinion

People v. White

  • 69 Ill. App. 3d 830
  • 387 N.E.2d 728
Court
Appellate Court of Illinois
Filed
Apr 12, 1979
Status
Published
Author
Wilson
On the bench
Wilson
Cited by
4 cases
Authority
More cited than 9.9%

The opinion

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

Mr. JUSTICE WILSON delivered the opinion of the court:

In his petition for rehearing, defendant asks us to reconsider our holding that the 1973 Abortion Control Act did not apply to him and to consider the question of when his sentence should commence. Although we find defendant’s arguments with regards to the first issue lacking in merit, we will consider the second issue because, subsequent to hearing oral arguments, we entered an order that this issue would be taken with the case.

A brief history is necessary to understand the sentencing question. On February 21, 1977, defendant was convicted of criminal abortion in an Illinois State court and on May 23, he was sentenced to serve a term of one to three years. Defendant filed a timely appeal and was permitted to remain at liberty pending appeal after posting a bond. On April 14,1978, he was convicted in an Illinois Federal district court for his violations of various Federal drug and firearm statutes on or about July 22, 1977. He was sentenced to two concurrent terms of 10 to 15 years and a separate 5-year term to run concurrently with the first two sentences; he arrived at the Leavenworth Federal Penitentiary to begin his imprisonment on July 6,1978. On July 31, we issued an order revoking defendant’s appeal bond.

Defendant contends that his Illinois sentence began no later than July 31, when we revoked his appeal bond. He argues that our order of revocation amounts to a judicial decree committing him to the Illinois Department of Corrections. We disagree.

If we were to agree with defendant’s argument that our order of revocation amounts to a judicial decree which starts his imprisonment on the criminal abortion offense, we would be ruling, in effect, that the sentence for that offense would run concurrently with the sentences for the Federal offenses. This we cannot do since it is the prerogative of the court issuing the second sentence to determine the effect of the already imposed sentence. (People ex rel. Fleming v. Pate (1971), 48 Ill. 2d 426 , 270 N.E.2d 4 ; People v. Clark (1977), 46 Ill. App. 3d 240 , 360 N.E.2d 1160 .) This rule applies whether the court issuing the second sentence is another state’s court (People v. Clark) or a Federal court. (People ex rel. Fleming.) Furthermore, when two sentences have been issued, the first by a State court and the second by a Federal court, there is a presumption that the sentences run consecutively unless the order of the Federal court expressly states otherwise. People ex rel. Fleming; People v. Boney (1970), 128 Ill. App. 2d 170 , 262 N.E.2d 766 .

In the instant case, there is no indication that the Federal court’s order states that the sentences are to run concurrently. Absent such an express statement, we conclude that defendant’s Illinois’ sentence does not begin until the completion of his Federal sentence.

The petition for a rehearing is accordingly denied.

SULLIVAN, P. J., and MEJDA, J., concur.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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