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filed:  January 22, 2002

Defendant, James D. Baltzer, appeals his conviction of andsentence for perjury (720 ILCS 5/32--2(a) (West 1998)). We affirm asmodified.

The following is taken from the record. The following facts areuncontroverted. On or about January 11, 1994, defendant borrowedapproximately $9,845 from West Suburban Bank. Defendant provided his1982 Corvette as security for the loan, and West Suburban Bank held thetitle to the Corvette. Defendant then defaulted on the loan and, inresponse to West Suburban Bank's request, the circuit court issued anorder of replevin against the defendant's Corvette. Defendant wasserved with the order on September 8, 1995. In November 1995,defendant reported to the police that the Corvette had been stolen inWisconsin. On December 22, 1995, the circuit court entered judgmentin favor of West Suburban Bank, and a citation to discover assets wasissued to enforce the judgment.

In March 1996, defendant applied for a new title for theCorvette, falsely stating on the title application that the originaltitle, still held by West Suburban Bank, was "missing." Defendant didnot identify West Suburban Bank as a lienholder. After receiving theduplicate/new title for the Corvette in April 1996, defendant sold thecar to Joseph Williams, an attorney who had previously representeddefendant. On October 12, 1996, defendant transferred the title toWilliams. Three months later on January 17, 1997, during the citationproceeding, defendant provided the following sworn testimony,essentially stating that the car had been stolen and then recovered anddenying recalling what happened to the Corvette or the title. Theitalicized statements are those alleged to have been perjury in theindictment.

"Q. What became of the title?

A. For the car?

Q. Right.

A. I said I don't have it.

Q. Well, when you last had it, where did it go? Did it getup and walk away?

A. I don't recall.

Q. Did you ever deliver the title to any other person orentity?

A. I don't recall.

Q. Was the title stolen?

A. I don't recall.

Q. Have you ever reported the title stolen?

A. I don't recall. If it was in the vehicle, perhaps it disappeared with that. It has been a while.

Q. Have you ever applied to the Secretary of State for aduplicate or a renewal title?

A. Yes.

Q. When did you do that?

A. I don't recall.

Q. What calendar year, Mr. Baltzer?

A. I don't remember."

As the examination continued, counsel for West Suburban Bankasked defendant additional questions about his application for aduplicate title and how and where defendant recovered the Corvetteafter it was allegedly stolen. The following colloquy occurred. Again, the italicized statements were alleged to constitute perjury.

"Q. But it did come back into your possession; correct?

A. Yes.

Q. How long did you have it?

A. I don't recall exactly.

Q. Was it more than a week?

A. Well, I have indicated to you I don't recall, so I am standing by that answer.

Q. Okay. Was it more then a month?

A. I don't recall.

Q. Was it more than a day?

A. I don't recall.

Q. What did you do with the vehicle after it came back intoyour possession?

A. That I don't recall.

Q. But you no longer have it?

A. That's correct.

Q. Was it again stolen?

A. No.

Q. Did you sell the vehicle?

A. I don't recall.

Q. Did you transfer possession of the vehicle to some otherperson?

A. I don't recall.

Q. When did you last have possession of the vehicle?

A. I have indicated I don't recall.

Q. When was it that you last saw the vehicle?

A. That I don't recall.

Q. How did the vehicle come back into your possession?

A. I don't recall.

Q. What did you do with the vehicle after it came back intoyour possession?

A. That I don't recall.

Q. How did the vehicle come back into your possession?

A. I don't recall.

Q. When you say it was recovered, it was recovered by somepolice entity?

A. No.

Q. Who recovered it?

A. I did.

Q. And where did you find it?

A. I don't recall.

Q. Did you drive it after it came into your possession?

A. I don't recall.

Q. What was its condition when you found it?

A. I don't recall.

Q. Was it driveable?

A. I don't recall.

Q. Did it have its license plates still on it?

A. I don't recall.

Q. What did you do with the car itself, the actual physicalvehicle? Did you sell it?

A. I don't recall.

Q. Do you know who has the vehicle?

A. I don't.

Q. Do you know to whom you gave the vehicle?

A. I don't recall.

Q. It was not stolen from you again, was it?

A. No.

Q. So you voluntarily gave it up?

A. I didn't say that.

Q. How did you last give up possession of it --

A. I don't recall."

On January 22, 1999, the State charged defendant in a five-countindictment with perjury regarding his testimony in the citation-to-discover-assets proceeding. Counts I and II were dismissed prior totrial.

At the perjury trial, David Orr, vice president of West SuburbanBank, testified that defendant borrowed money from the bank and usedhis 1982 Corvette as security for the loan. Defendant defaulted on theloan in 1994 or 1995, and the bank attempted to collect its money fromdefendant.

Vince Robertelli, the attorney who represented West Suburban Bankagainst defendant regarding the loan, testified that the bank obtaineda judgment against defendant in the amount of $3,711.37 plus interest,attorney fees, and costs on December 22, 1995. Robertelli identifieddocuments including the citation to discover assets served on March 15,1996, the replevin order, and the sheriff's return of service of thereplevin order dated September 8, 1995. Robertelli stated that at thetime defendant was served with the writ of replevin defendant claimedthat he did not know the location of the Corvette. On January 17,1997, the supplementary proceeding to discover assets was conductedwith Judge Lucas presiding. Judge Lucas swore in defendant.

Jill Kadlec, a certified court reporter, testified that sherecorded and transcribed the proceedings of the hearing for thecitation to discover assets in January 1997 and identified State'sexhibit 1 as the transcript from the hearing.

Joseph Williams, an attorney, testified that he had representeddefendant in prior matters and that defendant gave him a 1982 Corvetteand its title in exchange for about $8,000 in legal fees. Williamsstated that he did not remember when defendant gave him the Corvette.

After hearing the testimony and argument, the court founddefendant guilty of two counts of perjury. On July 14, 2000, the trialcourt sentenced defendant to two concurrent sentences of 30 months'probation and provided the following:

"As a condition of the probation, the Defendant will be sentencedto 90 days of periodic imprisonment. He shall be released to theSWAP program [Sheriff's Work Alternative Program] only as acondition of that periodic imprisonment. The conditions of SWAP,the Defendant will be released for no more than 40 hours per weekof SWAP, and there will be no furloughs as a condition ofperiodic imprisonment.

Once the periodic imprisonment has terminated, it will bea condition of the Defendant's probation that he obtain andmaintain full-time employment."

During a July 24, 2000, hearing an assistant State's Attorneytold the court that defendant wore jail clothing when in custody for"periodic imprisonment" and, in an order dated July 24, nunc pro tuncJuly 14, the court ordered defendant to wear his prison clothing forcourt appearances. Defendant filed this timely appeal. The courtgranted defendant's motion to stay periodic imprisonment and SWAP,pending the outcome of this appeal.

On appeal, defendant first challenges the sufficiency of theevidence, arguing that the State failed to prove that all of thealleged perjurious statements were material and that defendant made thefalse statements knowingly.

We will not set aside a criminal conviction unless the evidenceis so improbable or unsatisfactory that it creates a reasonable doubtof a defendant's guilt. People v. Tye, 141 Ill. 2d 1, 13 (1990). Inviewing the sufficiency of the evidence, we will not retry thedefendant. People v. Smith, 185 Ill. 2d 532, 541 (1999). Instead, wemust determine only whether, after viewing the evidence in the lightmost favorable to the prosecution, any rational trier of fact couldhave found the essential elements of the offense beyond a reasonabledoubt. People v. Schmalz, 194 Ill. 2d 75, 80-81 (2000).

A person commits perjury:

"[W]hen, under oath or affirmation, in a proceeding or inany other matter where by law such oath or affirmation isrequired, he makes a false statement, material to the issue orpoint in question, which he does not believe to be true." 720ILCS 5/32--2(a) (West 1998).

Here, it is the element of materiality that defendant argues theState failed to prove. An allegedly perjurious statement is materialif it influenced, or could have influenced, the trier of fact in itsdeliberations on the issues presented to it. People v. Acevedo, 275Ill. App. 3d 420, 423 (1995). The purpose of a citation-to-discover-assets proceeding is to give judgment creditors an opportunity toexamine the judgment debtor and third parties to discover assets of thejudgment debtor that are not exempt from the enforcement of thejudgment. See 735 ILCS 5/2--1402(a) (West 1998). Section 2--1402 isconstrued liberally, vesting courts with broad powers to satisfy thejudgment with the discovered assets. City of Chicago v. Air AutoLeasing Co., 297 Ill. App. 3d 873, 878 (1998).

In this case, every answer at issue was material to the discoveryof assets that could be used to satisfy the judgment against defendant.The Corvette was not only security for the defaulted loan but was anasset that could have been used to satisfy the judgment and had beenattached by the court on September 8, 1995. Defendant claims thatcertain answers to questions were inconsequential. In particular,defendant notes his failure to recall whether the title to the Corvette"got up and walked away," how long he had the car after it wasrecovered, whether he drove the car after it was returned, whether itwas damaged or had license plates when it was returned, and whether thetitle disappeared along with the car when the car was stolen. Contraryto defendant's assertion, these were not inconsequential details, butwould have tended to prove or disprove a key issue in the proceeding,namely, whether defendant had an asset that could have been used tosatisfy the judgment or whether defendant had fraudulently transferredthe car to his attorney, another third party. Given this evidence, anyrational trier of fact could have found the statements at issuematerial.

Defendant also contends that the State failed to prove thatdefendant made the statements believing them to be false. Given theevidence, any rational trier of fact could have found that defendantdeliberately provided false answers in an attempt to hinder WestSuburban Bank's attempt to recover the Corvette and to satisfy thejudgment. Although defendant had reported the car stolen only 13months earlier, defendant testified that he could not recall how orwhen he recovered it and in what condition the car was in. Also,although defendant sold the car nine months earlier, defendanttestified that he could not remember when he sold the car. Given thisshort period of time, the importance of these events, and a lack of anyevidence that defendant was mentally challenged, we determine thatthere was sufficient evidence to prove defendant guilty beyond areasonable doubt of two counts of perjury.

Lastly, defendant argues, and we agree, that he is entitled tothe good-behavior allowance provided in section 3 of the County JailGood Behavior Allowance Act (Act) (730 ILCS 130/3 (West 1998)). TheAct provides in pertinent part:

"The good behavior of any person who commences a sentenceof confinement in a county jail for a fixed term of imprisonmentafter January 1, 1987 shall entitle such person to a goodbehavior allowance ***. The good behavior allowance provided forin this Section shall not apply to individuals sentenced for afelony to probation *** where a condition of such probation ***is that the individual serve a sentence of periodicimprisonment." (Emphasis added.) 730 ILCS 130/3 (West 1998).

The State argues that defendant's sentence of imprisonment was periodicbecause defendant was released for SWAP, and, thus, defendant is notentitled to good-behavior credit.

Periodic imprisonment is defined by section 5--7--1(a) of theUnified Code of Corrections as:

"[A] sentence of imprisonment during which the committedperson may be released for periods of time during the day ornight or for periods of days, or both ***. Unless the courtorders otherwise, the particular times and conditions of releaseshall be determined by the Department of Corrections, thesheriff, or the Superintendent of the house of corrections, whois administering the program." 730 ILCS 5/5--7--1(a) (West1998).

The provision also provides:

"(b) A sentence of periodic imprisonment may be imposed topermit the defendant to:

(1) seek employment;

(2) work;

(3) conduct a business or other self-employedoccupation including housekeeping;

(4) attend to family needs;

(5) attend an educational institution, includingvocational education;

(6) obtain medical or psychological treatment;

(7) perform work duties at a county, municipal, orregional or detention institution or facility;

(8) continue to reside at home with or withoutsupervision involving the use of approved electronicmonitoring device, subject to Article 8A of Chapter V; or

(9) for any other purpose determined by the court." 730 ILCS 5/5--7--1(b) (West 1998).

In interpreting a statute, a court begins with its language,which must be given its plain and ordinary meaning. People v. O'Brien,197 Ill. 2d 88, 90 (2001). The plain and ordinary meaning of "release"is "to set free from restraint, confinement, or servitude: set atliberty: let go." Webster's Third New International Dictionary 1917(1993). This meaning is supported by the examples provided by thelegislature, which include a defendant's freedom from restraint andconfinement. Here, defendant was never "released" for purposes of thestatute. Rather, even while out of the county jail for SWAP, defendantwas always supervised by the sheriff. He was never "at liberty." Although defendant was permitted to leave the jail, it was only underthe supervision and control of the sheriff. Just because defendant waslet out of his cell at the jail facility does not mean that he wasreleased. After all, defendants are let out of their cells to shower,exercise, and go to court, but it would be ludicrous to contend thatthese activities constitute release for purposes of periodicimprisonment. Thus, we agree with defendant that he was sentenced toa fixed term and not a periodic term of imprisonment. Therefore, heis entitled to earn good-behavior credit provided in section 3 of theCounty Jail Good Behavior Allowance Act. 730 ILCS 130/3 (West 1998). We modify the trial court's sentencing order to state that defendantis sentenced to a fixed term of imprisonment with participation inSWAP.

To support its argument, the State points to section 5--7--1(b)(9), stating that periodic imprisonment may be imposed "for anyother purpose determined by the court." 730 ILCS 5/5--7--1(b)(9) (West1998). However, the State's interpretation turns the meaning of"release" on its head, rendering the term meaningless. The term "anyother purpose" is limited by the term "release." The State'sinterpretation does not recognize this limitation. Thus, we cannotadopt its interpretation. See People v. Richardson, 196 Ill. 2d 225,228 (2001).

For these reasons, the judgment of the circuit court of DuPage County is affirmed as modified.

Affirmed as modified.

BYRNE and KAPALA, JJ., concur.