People v. McBride

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People v. McBride

State: Illinois

Court: 5th District Appellate

Docket No: 5-08-0166 Rel

Case Date: 10/19/2009

Preview:NO. 5-08-0166
NOTICE Decision filed 10/19/09. The text of this decision may be changed or corrected prior to the filing of a Peti tion for Rehearing or th e

IN THE APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Perry County. ) v. ) No. 04-CF-107 ) KEVIN D. McBRIDE, ) Honorable ) James W. Campanella, Defendant-Appellant. ) Judge, presiding. ________________________________________________________________________ PRESIDING JUSTICE WEXSTTEN delivered the opinion of the court: After the trial court sentenced him to a 12-year extended term of imprisonment with credit for time served on probation, the defendant, Kevin D. McBride, filed a motion to reconsider, challenging the extended-term portion of the sentence. Thereafter, the trial court reduced the defendant's sentence to a seven-year nonextended term but denied him the previously awarded probation credit. On appeal, the defendant maintains that the trial court's modification of his sentence improperly increased it in violation of section 5-8-1(c) of the Unified Code of Corrections (the Code) (730 ILCS 5/5-8-1(c) (West 2006)). For the reasons that follow, we agree and reverse. BACKGROUND In March 2004, in Perry County case number 04-CF-50, the defendant was charged with one count of unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2004)) and one count of criminal trespass to state-supported land (720 ILCS 5/21-5(a) (West 2004)). In July 2004, in Perry County case number 04-CF-107, the defendant was charged with one count of harassment of a witness (720 ILCS 5/32-4a(a)(2) (West 2004)) and one

disposition of the same.

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count of aggravated battery (720 ILCS 5/12-4(b)(8) (West 2004)). In November 2004, pursuant to negotiations with the State, the defendant pled guilty to the weapons charge in case number 04-CF-50 and the harassment-of-a-witness charge in case number 04-CF-107. In exchange for his plea, the remaining counts in both cases were dismissed, and he was sentenced to a four-year term of imprisonment in case number 04-CF50 and a 30-month term of probation in case number 04-CF-107. The term of probation was ordered to run consecutively to the term of imprisonment. In August 2005, in Perry County case number 05-CF-108, the defendant was charged with one count of residential burglary (720 ILCS 5/19-3(a) (West 2004)), one count of criminal trespass to state-supported land (720 ILCS 5/21-5(a) (West 2004)), and one count of resisting a peace officer (720 ILCS 5/31-1(a) (West 2004)). In November 2005, pursuant to negotiations with the State, the defendant pled guilty to the residential burglary charge in exchange for a five-year prison sentence and the dismissal of the remaining counts against him. The term of probation imposed in case number 04-CF-107 was deemed to have begun on August 12, 2005

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