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People v. Elizalde12/3/2003
PUBLISHED
Defendant, Epifanio Elizalde, appeals from a judgment revoking his probation. Defendant's underlying conviction was his third conviction of driving under the influence of alcohol. Defendant points out that the trial court's order entering his conviction errantly states that his conviction was a Class 2 felony where a third conviction of driving under the influence of alcohol is only a Class 3 felony. Defendant argues that we should correct the judgment order and adjust his sentence to reflect that his conviction was a Class 3 felony. For unrelated reasons, defendant also argues that he should be given credit for two additional days of time served against his sentence and $5-per-day credit for time served against a $100 "fee" imposed by the trial court. We affirm in part, modify in part, vacate in part, and remand.
On June 1, 2001, defendant pleaded guilty to driving under the influence of alcohol in violation of section 11--501 of the Illinois Vehicle Code (Code) (625 ILCS 5/11--501 (West 2002)). Defendant's offense was a Class 3 felony because it was his third violation of section 11--501. 625 ILCS 5/11--501(c-1)(2) (West 2002). The judgment order errantly states that defendant's third violation of section 11--501 was a Class 2 felony. Defendant also pleaded guilty to driving while license revoked (625 ILCS 5/6--303(d) (West 2002)), a Class 4 felony. Defendant was sentenced to 24 months' probation on each count, to be served concurrently. Additionally, defendant was ordered to pay a $100 fee that was authorized by section 5--1101(d) of the Counties Code (55 ILCS 5/5--1101(d) (West 2002)) for a second or subsequent conviction of driving under the influence of alcohol.
On April 2, 2002, the State filed a petition to revoke defendant's probation based on defendant's failure to report to the probation department as ordered. On May 6, 2002, after holding a hearing on the matter, the court granted the State's petition to revoke. On resentencing, the court sentenced defendant to three years in prison for the driving-under-the-influence-of-alcohol count and two years in prison for the driving-while-license-revoked count, to be served concurrently.
Like the judgment order, the sentencing order incorrectly states that defendant's conviction of driving under the influence of alcohol was a Class 2 felony. Defendant was given credit against both sentences for 91 days' time served.
Defendant first points out that the trial court erred in characterizing his conviction of driving under the influence of alcohol as a Class 2 felony. A third violation of section 11--501 is a Class 3 felony under section 11--501(c--1)(2) of the Code (625 ILCS 5/11--501( c--1)(2) (West 2002)), not a Class 2 felony as both the judgment order and the sentencing order state. Defendant argues and the State agrees that we should correct the orders to reflect that defendant has been convicted only of a Class 3 felony. We modify defendant's judgment and sentencing orders to reflect that he has been convicted of a Class 3 felony.
Defendant further argues that we should modify his sentence from three years to two years because two years is the minimum sentence for a Class 3 felony. See 730 ILCS 5/5--8--1(a)(6) (West 2002). The State responds that the issue of defendant's sentence is moot because defendant has already been released from prison. The State is correct that the question of the validity of a sentence becomes moot after the sentence is served. People v. Lieberman, 332 Ill. App. 3d 193, 196 (2002). However, the parties agree that defendant has not completed serving his period of mandatory supervised release. The period of mandatory supervised release is part of a d
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