By Samuel Partida, Jr.
People v. Hutt, 2022 IL App (4th) 190142 (January). Episode 872 (Duration 5:09)
If you are going to hearing on sentencing that includes restitution don’t forget proof of the amount, defendant’s ability to pay, and the exact payment schedule.
[Read more…]By Samuel Partida, Jr.
People v. Birge, 2021 IL 125644 (February). Episode 871 (Duration 3:56)
If you’re going to a full restitution hearing remember to enter something on restitution.
[Read more…]By Samuel Partida, Jr.
People v. Larson, 2022 IL App (3d) 190482(January). Episode 870 (Duration 7:23)
16 victim impact statements was a bit too much and improper.
[Read more…]By Samuel Partida, Jr.
People v. D’Alise, 2022 IL App (2d) 210541 (January). Episode 857 (Duration 9:53)
Also, Illinois courts believe a defendant should not be allowed to profit from his crimes.
[Read more…]By Samuel Partida, Jr.
People v. Reveles-Cordova, 2020 IL 124797 (November). Episode 832 (Duration 11:44)
Illinois Supreme Court says a home invasion predicated on a rape is a single conviction and the rape, merges, as a lesser-included offense.
[Read more…]By Samuel Partida, Jr.
By Samuel Partida, Jr.
People v. Coty, 2020 IL 123972 (June). Episode 784 (Duration 15:19)
Defendant’s with diminished mental capacity are eligible for life and de facto life sentences.
Read moreBy Samuel Partida, Jr.
Sometimes when lawyers are trying to make sense of the criminal law two different laws may appear to contradict themselves.
What should happen in those situations?
Then rule of lenity is applied. So what is the rule of lenity?
The rule of lenity is:
Black’s Law Dictionary (11th ed. 2019).
The Illinois Supreme Court has stated, “under the rule of lenity, we adopt the more lenient interpretation of a criminal statute when, after consulting traditional canons of statutory construction, we are left with an ambiguous statute.” People v. Gaytan, 2015 IL 116223, ¶ 39, 32 N.E.3d 641.
Consider the case of People v. Rowell, 2020 IL App (4th) 190231 (April). Episode 766 (Duration 5:32) as an example of where the rule lenity was applied.
Defendant was challenging the state’s attempt to sentence her to 180 days i jail. The state said they were merely section 11-501(c)(3) of the Vehicle Code (625 ILCS 5/11-501(c)(3)) which required her to serve a minimum of 180 days’ imprisonment.
Defendant argued the plain language of the statute is permissive rather than mandatory, noting section 11-501(c)(3) lacks words like “mandatory” or “shall” with regard to the six months of imprisonment, which are included elsewhere in section 11-501.
The court had to determine whether the legislature intended section 11-501(c)(3) to require a trial court to impose a minimum of six months’ imprisonment as part of defendant’s sentence.
At issue in this case was section 11-501(c)(3) of the Vehicle Code (625 ILCS 5/11- 501(c)(3)), which states:
The defense pointed out that the statute did not make use of the words “mandatory” or shall which are the understood terms used to document a required provision.
In different sections of 11-501 the law makers in fact did use the term “mandatory” or “shall” to explicitly say when something is required rather than merely be discreationary.
Finally, the defense could point to more serious DUI charges that don’t require 180 days in jail.
The State noted that defendant already faced the possibility of being sentenced to 364 days in jail, for a Class A misdemeanor conviction.
Thus, the phrase “is subject to 6 months of imprisonment” would be entirely superfluous unless it is interpreted to require 6 months of incarceration.
The court finally pointed to the rule of lenity to rule that the 180 days of jail were not necessarily required.
The court said section 11-501(c)(3) should not be construed to impose a mandatory minimum period of 6 months’ imprisonment. The case was sent back to the trial court for a new sentencing hearing.
By Samuel Partida, Jr.
People v. Rowell, 2020 IL App (4th) 190231 (April). Episode 766 (Duration 5:32)
Is 6 months jail a mandatory sentencing provision for a DUI when a child is in the car or is it a discretionary sentence?
Read moreBy Samuel Partida, Jr.
People v. Matute, 2020 IL App (2d) 170786 (February). Episode 757 (Duration 8:05)
Defendant’s chose to not make a sentence in allocution cannot be used against him at sentencing.
Read moreBy Samuel Partida, Jr.
In Illinois the lowest level felony offense is a Class 4 Felony. See the chart below to see where it falls within the Illinois felony classification system.
[Read more…]By Samuel Partida, Jr.
In Illinois a Class 3 Felony is considered a low level felony charge. See the chart below to see where it falls within the Illinois felony classification system.
| Class | Sentencing Range | Extended Term (if eligible) |
|---|---|---|
| Class M | 20-60 years | 60-100 years |
| Class X | 6-30 years | 30-60 years |
| Class 1 | 4-15 years | 15-30 years |
| Class 2 | 3-7 years | 7-14 years |
| Class 3 | 2-5 years | 5-10 years |
| Class 4 | 1-3 years | 3-6 years |
A Class 3 Felony is punishable with a minimum term of imprisonment of 2 years up to a maximum of 5 years. See 730 ILCS 5/5-4.5-40.
These offenses are generally probationable.
However, a Class 3 Felony charge is potentially eligible for an extended term. If an extended term applies then an individual can be sentenced to a minimum term of imprisonment of 5 years up to a maximum of 10 years.
See the General Illinois Sentencing Index To learn more about extended terms. See also 730 ILCS 5/5-8-2(a), 730 ILCS 5/5-4.5-5, 730 ILCS 5/5-5-3.2(b).
In Illinois there are 2 offenses that have “suped-up” minimu and maximum penalties. Lawyers call these super felonies. Below you’ll find the Illinois Super Class 3 Felonies:
| Intimidation (2-10) | 720 ILCS 5/12-6(b) |
| UUW Felon (2-10) | 720 ILCS 5/24-1.1(e) |