modifying $200-per-month-for-four- years restitution order to 10% of the defendant’s net monthly income and extending restitutionary period to five years, where, after taking judicial notice of the fact that the defendant had a new, lower-paying job, the court concluded that the defendant’s college degree in law enforcement administration would be of limited use due to his criminal record and where his income in the previous year was $6,000 and was not likely to significantly increase in the future
How later courts described this case
- modifying $200-per-month-for-four- years restitution order to 10% of the defendant’s net monthly income and extending restitutionary period to five years, where, after taking judicial notice of the fact that the defendant had a new, lower-paying job, the court concluded that the defendant’s college degree in law enforcement administration would be of limited use due to his criminal record and where his income in the previous year was $6,000 and was not likely to significantly increase in the future
Written by the judges who cited it.
The opinion
JUSTICE BARRY, concurring in part and dissenting in part:
I agree with my colleagues that the circuit court’s order of restitution cannot stand in its present form since monthly payments of $200 will not result in the restitution of $12,730.46 within the period permitted by the sentencing court’s order. Obviously, the sentencing order must be corrected. I part company with my colleagues’ disposition of the appeal thereafter.
The circuit court is in the proper position to determine the appropriate sentence to be imposed upon a convicted defendant. (People v. Edwards (1985), 135 Ill. App. 3d 671 , 482 N.E.2d 137 .) It is a rare exception, rather than the rule, that a sentencing order should be modified in the reviewing court. See People v. Younger (1986), 112 Ill. 2d 422 , 494 N.E.2d 145, 147 (supreme court reversed appellate court’s reduction of defendant’s sentence, quoting People v. La Pointe (1981), 88 Ill. 2d 482 , 431 N.E.2d 344 , for the point that the proper standard of review for an issue charging an excessive sentence is whether the trial court abused its discretion).
In this case, the majority has elected to apply the percentage formula adopted by the Knowles court without regard to significant factual differences between the two cases. For instance, in Knowles the reviewing court justified its modification of the sentencing court’s restitution order on grounds that the cause before it there had already been in litigation for more than five years. By contrast, the charge in the matter before us was brought against the defendant only 18 months ago. Moreover, the defendant before us has not even requested that we grant direct relief from the discrepant sentencing order pursuant to our Rule 615(b)(4) (87 Ill. 2d R. 615(b)(4)) authority. Defendant has requested a remand, which I believe is the appropriate relief to be granted here.
In my opinion, considering the facts presented to the sentencing court in this case, it cannot be said that either the total amount of restitution ordered or the amount of monthly installments was an abuse of the sentencing court’s discretion. (See People v. Tidwell (1975), 33 Ill. App. 3d 232 , 338 N.E.2d 113 .) Unfortunately, as stated above, the two amounts cannot be reconciled, particularly considering the four-year period specified by the court’s order. Further, the order as drafted by the sentencing court cannot be modified to comply with the five-year period statutorily allowed (Ill. Rev. Stat. 1985, ch. 38, par. 1005—5—6(f)). For these reasons, I would remand this cause to the circuit court of McDonough County for correction of the sentencing order.