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Author Topic: Confusing Sentence- Need to Contact Judge?  (Read 4961 times)
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IMissMyBaby
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« on: April 19, 2009, 07:34:31 AM »

Hey, I have a few questions about some things I am confused about. My bf is at Southwestern facility and I posted a previous message about his sentence. I was confused because his lawyer said 50%, but his time on IDOC reflects 85%. I am not able to talk to him yet, because his first 30 days are not up yet. He sent me a letter yesterday and I am confused on what to do. He sent me an "Offender Request" where he asked them to send me his Amendment Sheet. Some CO from that facility filled it out, wrote this exactly, and sent it to me:

Charge: Agg. Discharge of a Firearm.
This is a truth sentencing crime, which means you have to serve 85% percent of your time, which means no good time. HOWEVER, the judge put day good time on your mittimus sheet, which means we have to write the judge and have him clarify that that is actually what he meant instead of the 85% Truth in Sentencing. If he retracts the Day for Day, the 85% stands. If he wants Day for Day you will receive good time. We will keep you informed of the status of your case.


I am so confused. He took the SA deal because they said he would serve only 50% of his time because he caused NO great bodily harm on anyone. His crime was violent, but hurt NO ONE. Did the judge not make that clear enough on his mittimus?? He wrote me a panicked letter asking me to figure everything out because if not he would be during 3 years instead of 1 year!!! HELP!! Do I write the judge? Do I call? His family is out of the country right now, which makes everything worse because I can't contact them. I don't have the lawyer's number. The CO said above that they would be contacting the judge to see if he really meant 50% time instead of the 85%, how long does that take???? Any comments to help with would appreciated. I'm so worried he will do 85%, when that wasn't the deal!!!!! My bf only took that deal because of the 50% part. Has this happened to anyone else????
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jlnjy
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« Reply #1 on: April 19, 2009, 09:36:13 AM »

It appears that the judge order exception to his sentence that goes with truth in sentencing and that it is documented. Perhaps the CO @ Southwestern is not used to seeing something like that and needs the verification - I'm not sure why.

It also appears you have the documentation to prove it - the judge's order. I have no idea why the judge would retract it but you might want to contact the judge on your bf's behalf so you can have further clarification. I can understand your worry being told one thing and then get something different but again judge's orders will trump IDOC meddling. The only thing he has to be concerned with is his behavior and following rules to the T - be a model inmate.

It stinks when you can't get the answer right away but Monday morning will be here in less than 24 hours. Let us know what you find out.



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wils124
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« Reply #2 on: April 21, 2009, 10:42:26 PM »

My first post on IPT. . .aggravated discharge of a firearm requires that an offender serve 85% of his sentence.  It is much like Mandatory Supervised Release, the legislature has mandated that sentence be served and the court has no discretion in the matter. If your boyfriend was told that he would only be required to serve 50%, it may be grounds for him to withdraw his guilty plea or vacate his sentence (this is especially true if his attorney told him that his sentence would be served at 50%).  For example see People v. Stewart at http://www.state.il.us/court/Opinions/AppellateCourt/2008/4thDistrict/March/4060828.pdf

"Attached to defendant's petition was a letter from his attorney addressed to defendant wherein the attorney stated he was not aware that defendant would have to serve 85% of his sentence. The letter stated that the attorney understood at the time of the plea that day-for-day applied because the trial court did not find any great bodily harm occurred. Counsel was not aware that the statute had been amended and an automatic 85% rule applied to all aggravated-discharge-of-a-firearm offenses even absent a great-bodily-harm finding." People v. Stewart

It sounds like a notice of appeal should be filed to guarantee that there is some review of this sentence.  While the judge may offer clarification, a notice of appeal, generally and with some exceptions, needs to be filed within 30 days of the final judgment order (ie. if the judge takes some time to look your bf's case over and, in the process, more than 30 days passes it may be difficult for your bf to appeal anything).  I would contact his attorney and request that a notice of appeal be filed or encourage your bf to send a letter to the court expressing his desire to appeal his guilty plea and sentence.

As to the great bodily harm. . .a "serious injury" is not always required.  A broken nose or a few stitches sometimes fulfills the great bodily harm requirement.

Best of luck to you.
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jlnjy
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« Reply #3 on: April 22, 2009, 12:00:17 AM »

wils you bring up a good point regarding what was "said" however the judge wrote on the court document day for day and the CO at the prison is writing for clarification and stated if that is truly what the judge meant then this inmate will get good time and day for day which will equal to 50%.

However if your stating that a judge is not allowed to do this....that's a whole other can of worms.

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IMissMyBaby
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« Reply #4 on: April 22, 2009, 08:00:56 AM »

yes, JL what you are saying is right. The judge wrote day for day on his mittimus sheet, which implies he gets 50%. That was the plea deal. He didn't hurt anyone, not a even a bruise. He didn't have physical contact and the weapon didn't either. I think SW facility is confused because they are used to 85% for the charge he got, but his case is a little different. I am hoping the judge will clarify the 50% and my bf can serve the rest of his time. I heard that since the judge wrote 50% and that was the deal if he changes that we can fight it. I mean I hope it doesn't go THAT far........ I just hope the judge writes back in a timely manner. Wishful thinking I am sure.
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jlnjy
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« Reply #5 on: April 22, 2009, 05:00:51 PM »

Well that's just aggravating that they are challenging it - wanting clarification, I mean for goodness sakes if the mitmus sheet gives that specific day for day why is SW challenging it. If a judges written order is questionable then what power does a judge possess in the first place? I want to file mental aggravation to the CO myself. Perhaps someone that has been a CO can elaborate to help me understand my simple mindedness about why and when the prison questions written words on a legal document.
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Dazzler
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« Reply #6 on: April 22, 2009, 05:28:40 PM »

Perhaps the confusion comes because aggravated discharge of a firearm is mandated by legislation to be an 85% sentence.  Maybe the judge has no authority to change the terms of the sentence and he's being questionned?  There are judges on the bench that have been sitting in courtrooms just a few days...newly elected...that I'm sure aren't totally familiar with sentencing laws.  I've heard judges ask lawyers, another uninformed bunch, what sentence guidelines are.  It could be a mixup...in any event every county has an office that does the mittimus papers for those entering the IDOC.  They figure county good time, etc. and send the paperwork to the IDOC.
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jlnjy
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« Reply #7 on: April 22, 2009, 05:37:16 PM »

Perhaps the confusion comes because aggravated discharge of a firearm is mandated by legislation to be an 85% sentence.  Maybe the judge has no authority to change the terms of the sentence and he's being questionned?  There are judges on the bench that have been sitting in courtrooms just a few days...newly elected...that I'm sure aren't totally familiar with sentencing laws.  I've heard judges ask lawyers, another uninformed bunch, what sentence guidelines are.  It could be a mixup...in any event every county has an office that does the mittimus papers for those entering the IDOC.  They figure county good time, etc. and send the paperwork to the IDOC.

How would one know what judge has the authority to change the terms? I mean I realize judges can use their discretion of minimum to maximum time but can they over ride mandated legislation? If a judge made an error in the sentencing what is the consequence? I realize this is IMissMyBaby's question but its got me wondering where the screws are loose in the entire judicial / justice system.
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wils124
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« Reply #8 on: April 22, 2009, 07:29:43 PM »

I am pretty sure Dazzler is correct.  Aggravated discharge of a firearm is a mandatory 85% crime as long as the conviction is under the recent amendment.  I believe the correct statute states:

"***a prisoner serving a sentence for aggravated discharge of a firearm, whether or not the conduct leading to conviction for the offense resulted in great bodily harm to the victim, shall receive no more than 4.5 days of good conduct credit for each month of his or her sentence of imprisonment."

That "shall" language is the key.  Usually, when a judge has sentencing discretion, the statute says so.  I am aware of no circumstance that allows the court to order day-for-day credit with aggravated discharge.  Dazzler is correct that this issue is confusing for judge, partly because the statute was amended not that long ago. 

It used to be that courts did not have to admonish a defendant about the amount of good-time that they would be awarded.  Because it was mandated by statute and, thus, out of the court's control it was referred to as a "collateral consequence" (a consequence that the court did not have to advise a defendant about).  However, the court/State's attorney/defense attorney is not allowed to mislead a defendant about the amount of good time they will receive.  If that was done it may be a ground to withdraw a guilty plea or to have a sentence reconsidered.  Additionally, the Whitfield opinion (requiring the court's to inform defendants regarding the amount of mandatory supervised release they have to serve) should make courts reconsider what admonishions they have to give to defendants as MSR also, before Whitfield, was considered a "collateral consequence."

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Dazzler
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« Reply #9 on: April 22, 2009, 07:35:47 PM »

I'd be curious to know whether the judge acknowledged the 50% time during his oral sentencing...or if the State told the judge what the plea agreement was and he just signed off on it.  Maybe the 50% wasn't even mentioned in open court...only behind closed doors with the defendant's attorney and the SA.  If he's got it in writing I'd say someone has a problem.....I don't think the IDOC can overrule the judge...I'd say he'd be getting a lecture from the Chief Judge if someone makes a stink...
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~ "I have visited some of the best and the worst prisons and have never seen signs of coddling, but I have seen the terrible results of the boredom and frustration of empty hours and pointless existence." ~ US Supreme Court Justice Warren Burger

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« Reply #10 on: April 22, 2009, 07:39:46 PM »

The Whitfield opinion?  Is that the recent one that's been allowing many in IDOC to get released early?  I never heard that name applied to it...
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wils124
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« Reply #11 on: April 22, 2009, 08:27:53 PM »

Yes, some people have been able to get sentencing relief because they were not admonished about mandatory supervised release when entering into a fully negotiated plea agreement.  The Illinois Supreme Court, in People v. Whitfield, said that, because a fully negotiated plea agreement is like a contract, all of the terms must be disclosed to a defendant.  When the admonishments are not proper a defendant has two possible remedies - they can withdraw their guilty plea or they can have the amount of MSR deducted from their prison sentence.  Some of the appellate courts interpret the Whitfield opinion differently and there is currently another case, similar to Whitfield, pending in the Illinois Supreme Court (the case is in the process of being briefed but arguments have not been held).  Hopefully the court will clarify some confusing parts of its opinion.  The Whitfield opinion can be found at:  http://www.state.il.us/court/Opinions/SupremeCourt/2005/December/Opinions/Html/98136.htm

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IMissMyBaby
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« Reply #12 on: April 22, 2009, 08:46:04 PM »

Well, I will keep everyone posted on what actually does happen, but I am fairly certain the judge was well aware of the 50%, I mean he wrote it on his mittimus sheet. Then, before my boyfriend was taken away the judge said to him that it seems like you have a great positive attitude and will learn something from all of this plus you will be out very soon. So, I am fairly positive the judge didn't mix any of this up. It just sucks SW can't just do what the judge said no they have to clarify. In the meanwhile my bf can't take any classes because they don't know if he is eligible for them until the judge gets back. Daz, or anyone how long does the judge have to write back? Could it take longer than 30 days????
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Dazzler
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« Reply #13 on: April 22, 2009, 09:42:28 PM »

I don't think judges are held to any timetables...LOL...I think they'd do it when they get around to it...and who knows how long it will take for the IDOC to contact the judge....

wils, thanks for the clarification...sounds like you're an attorney....we've got a lot of attorney members but they rarely clarify anything for us...
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~ "I have visited some of the best and the worst prisons and have never seen signs of coddling, but I have seen the terrible results of the boredom and frustration of empty hours and pointless existence." ~ US Supreme Court Justice Warren Burger

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~ Mahatma Gandhi
jlnjy
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« Reply #14 on: April 22, 2009, 11:16:57 PM »

I don't think judges are held to any timetables...LOL...I think they'd do it when they get around to it...and who knows how long it will take for the IDOC to contact the judge....

Unfortunate but true ...ironic how they can dish it out (time tables to the public - pay your fine in xx days) but they can't follow any nor have to.
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IMissMyBaby
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« Reply #15 on: April 23, 2009, 10:40:47 AM »

Yikes this isn't good. Who knows how long this is going to take. I guess that's why I need to contact the lawyer. Hopefully, he can figure out what is going on. His family comes back into the country today, so I will contact them as well. It just sucks. Like they play with people's lives...... he can't take any of the classes he wants to speed up time until they figure this all out. I truly hope I know something in 30 days and it makes it worse because I can't even talk to him yet....... argh!!! I thought everything would be easier from sentencing....
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Dazzler
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« Reply #16 on: April 23, 2009, 10:42:55 AM »

You haven't called the County yet to inquire? 
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~ "I have visited some of the best and the worst prisons and have never seen signs of coddling, but I have seen the terrible results of the boredom and frustration of empty hours and pointless existence." ~ US Supreme Court Justice Warren Burger

~ "An eye for an eye makes the whole world blind."
~ Mahatma Gandhi
IMissMyBaby
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« Reply #17 on: April 23, 2009, 07:45:05 PM »

No, I have been trying to get ahold of his family first. Should I contact the Cook County Court? Who do I specifically call, like what department?
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IMissMyBaby
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« Reply #18 on: May 25, 2009, 04:36:56 PM »

Ok, so we FINALLY got a court case with the judge- this Friday May 29. I should know by the end of the week what his actual sentencing will be. I hope and pray and hope and pray and hope and pray it is 50%.
 wc7
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mamacita1
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« Reply #19 on: May 25, 2009, 05:26:19 PM »

I hope it works out in the best interest of your bf.

My son was misled by his attorney and the judge in a similar manner.  By the time we found out, it was too late to do anything about it.  And.....my son's attorney was a former judge!
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IMissMyBaby
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« Reply #20 on: May 25, 2009, 05:58:15 PM »

Oh, gosh....... I'm so sorry! So did you try and appeal it under being mislead? This is all confusing and I am pretty positive he took the plea bargain under it being 50% of his time, not 85%. He has an 85% mandatory sentence, BUT his crime didn't harm anyone, so the judge gave him 50%. Southwestern facility wanted to double check all of this to make sure this is what the judge wanted. I swear if the judge says 85%..... prepare for a fight. Argh, I wish I could just know now. Court things move so sslllooowwwwwww
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wils124
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« Reply #21 on: May 29, 2009, 09:08:50 PM »

How did things go today??
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codyandbecca
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« Reply #22 on: May 29, 2009, 09:28:52 PM »

I too am curious on how things went. I am going to give you my husbands example on how IDOC overides the judges ruling. My husband was ordered 2 yrs of supervised release upon parole for his conviction by the judge. IDOC has told me that my husband is to be on parole for life. Now that overrides a judges order so i am not sure how your issue will work out but i do hope it works out for the good for you and him.
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jlnjy
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« Reply #23 on: May 30, 2009, 01:19:06 AM »

I spoke with IMissMyBaby earlier today and she told me the outcome but I'm sure she'll be here to share the details later. Basically nothing was determined at the hearing.
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IMissMyBaby
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« Reply #24 on: May 30, 2009, 09:44:57 AM »

Thanks JL for filling in for me.  wc3 I was at work all yesterday after court. Basically nothing was determined yet. the lawyer had requested the transcripts for the court date, but they didn't have them ready yet. The judge said he wasn't going to make a decision without them. The SA however kept trying to get the judge to do 85%, which is NOT what we all thought the deal was. I do hope the transcripts show all this. We don't even have another court date, we have to wait until the court contacts the lawyer that they have the transcripts in. Hopefully, it'll be in a week or so and this whole deal will be over. I will keep you posted.
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