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No. 2--01--0864

In separate cases, defendant, Daniel McNett, pleaded guilty to two felony counts of driving under the influence of alcohol (DUI)(625 ILCS 5/11--501(a) (West 1998)), as well as a felony count ofdriving while his license was revoked (DWLR) (625 ILCS 5/6--303(West 1998)). Pursuant to a plea agreement, he received 2concurrent 30-month sentences of imprisonment and a consecutive 30-month sentence of probation with the condition that he serve 18months of periodic imprisonment. Defendant later moved to vacatethe periodic imprisonment condition, alleging that it was void. The trial court reduced the term from 18 months to 12 months, butrefused to vacate the remainder of the term. Defendant appeals,contending that the court lacked authority to impose periodicimprisonment consecutive to a prison term.

In case No. 99--CF--1521, defendant was charged with felonyDUI and a misdemeanor count of DWLR. In case No. 99--CF--1280, hewas charged with a misdemeanor count of DWLR and felony DUI. Incase No. 99--CF--1472, he was charged with felony DUI and felony DWLR.

Pursuant to an agreement with the State, defendant pleadedguilty to all the charges except the DUI in case No. 99--CF--1280,which the State nol-prossed. Under the agreement, defendant wassentenced to concurrent 30-month prison terms for the DUI in caseNo. 99--CF--1521 and the DWLR in case No. 99--CF--1280. In caseNo. 99--CF--1472, he was sentenced to 30 months of probation foreach charge, with the condition that he serve 18 months of periodicimprisonment. The probation terms were to be served concurrent toeach other, but consecutive to the prison sentences in the othertwo cases. The purpose of structuring the sentences in this waywas so that defendant could receive treatment for his alcoholismwhile in the county jail.

On July 12, 2000, defendant, who had retained a new attorney,moved to stay or vacate the periodic imprisonment term. The trialcourt, through Judge John T. Phillips, denied the motion on July28, 2000. On August 25, 2000, defendant moved to reconsider. However, he took no further action on the motion until December 12,2000, when the State moved to revoke his probation.

Over the next several months, defendant, at various timesacting pro se, represented by the appellate defender, orrepresented by private counsel, filed numerous motions, includingone alleging that all of the judges of the Nineteenth JudicialCircuit were prejudiced against him. Defendant and his attorneysalso filed various new or amended motions to vacate the periodicimprisonment term.

On May 21, 2001, the court, through Judge Mary S. Schostok,denied defendant's request to vacate his periodic imprisonment. The court agreed with defendant that under this court's decision inPeople v. Ortiz, 321 Ill. App. 3d 920 (2001), he could not besentenced to more than 12 months of periodic imprisonment. Therefore, the court vacated six months of the term, which resultedin defendant's immediate release from custody. However, relying onPeople v. Wendt, 163 Ill. 2d 346 (1994), the court ruled that theremainder of the sentence was not void. On June 1, 2001, defendantfiled a notice of appeal.

Before turning to the merits, we must dispose of twopreliminary matters. The State contends that we lack jurisdictionto hear this appeal because defendant filed his notice of appealnearly two years after he received the sentence he complains of andalmost one year after his first motion to vacate the sentence wasdenied. However, defendant contends that the sentence was void,and a void order may be attacked at any time. Ortiz, 321 Ill. App.3d at 921. In Ortiz, we reached the merits of the appeal undersimilar circumstances, and we conclude that we have jurisdiction ofthe present appeal as well.

We also note that this case appears to be moot. When thetrial court reduced the term of periodic imprisonment from 18months to 12 months, defendant was immediately released fromcustody. In general, where the only relief sought is to vacate asentence, the issue becomes moot when the sentence has been served.

People v. Lieberman, 332 Ill. App. 3d 193, 195 (2002). However, acase is not moot if a defendant may be subject to collateral legalconsequences after serving the sentence. People v. Cotto, 49 Ill.App. 3d 382, 386 (1977). Here, defendant argues, and the Stateagrees, that defendant may be subject to collateral consequences asa result of the challenged sentence. Therefore, we decline to findthe issue moot.

Turning to the merits, defendant contends that this case isgoverned by People v. Gerdes, 196 Ill. App. 3d 133 (1990), whichheld that the Unified Code of Corrections (the Code) (730 ILCS 5/1--1--1 et seq. (West 2000)) does not authorize a court to imposeperiodic imprisonment consecutive to a continuous prison term. TheState responds that Wendt implicitly overruled Gerdes and governsthis case.

In Wendt, the supreme court concluded that nothing in the Codeprohibited a court from sentencing a defendant to a probation termconsecutive to a prison term. Wendt, 163 Ill. 2d at 354. Inaffirming the appellate court's holding that such a sentence wasauthorized, the court observed that the appellate court haddisagreed with an earlier case, People v. Mack, 133 Ill. App. 3d788 (1985), that had refused to approve such a sentence. The courtthen listed several other cases, including Gerdes, that had reachedthe same result as Mack, but expressed its agreement with theposition taken by the court below. Wendt, 163 Ill. 2d at 352. Thus, the State has a firm basis for arguing that Wendt overruledGerdes.

Moreover, although the parties somewhat imprecisely refer todefendant's sentence as one of periodic imprisonment, in fact thecourt sentenced him to a consecutive term of probation, conditionedupon serving a term of periodic imprisonment. Thus, defendant'ssentence, prison followed by probation, was precisely the typeapproved by Wendt. Nothing in Wendt purports to limit theconditions that a trial court can attach to probation. Section 5--6--3 of the Code specifically permits, without restriction, a termof periodic imprisonment as a condition of probation. 730 ILCS5/5--6--3(b)(1) (West 2000).

In spite of this, defendant insists that part of the holdingof Gerdes survives Wendt. Defendant concedes that Gerdes relied onthe rationale of Mack that the supreme court expressly rejected. However, he contends that Gerdes relied on a second rationale thatWendt did not affect.

Gerdes cites the council commentary to section 5--7--8 of theCode. That section provides in part that the "service of asentence of imprisonment shall satisfy any sentence of periodicimprisonment." 730 ILCS 5/5--7--8(a) (West 2000). The councilcommentary states, "This section adopts a rule of concurrency formost sentences of periodic imprisonment because there seems to besmall value in tacking such a sentence onto the beginning or theend of a continuous prison term." 730 ILCS Ann. 5/5--7--8, CouncilCommentary, at 243 (Smith-Hurd 1997); see also People v. Lueloff,161 Ill. App. 3d 432, 435 (1987).

Defendant points out that Wendt approved the sentence at issuebecause it found nothing in the Code prohibiting a probation termconsecutive to a prison sentence. Defendant argues that section 5--7--8 does prohibit a consecutive sentence of periodicimprisonment. We disagree for two reasons.

First, section 5--7--8 is entitled "Subsequent Sentences." The first sentence reads in full, "The service of a sentence ofimprisonment shall satisfy any sentence of periodic imprisonmentwhich was imposed on an offender for an offense committed prior tothe imposition of the sentence." 730 ILCS 5/5--7--8(a) (West2000). This section, by its express terms, applies only to aprison sentence imposed after a sentence of periodic imprisonment. It says nothing about sentences that, as here, were imposed at thesame time.

Even if this section applied here, it does not absolutelyprohibit a periodic imprisonment term consecutive to a continuoussentence. The council commentary on which defendant relies statesthat the section prescribes that "most" periodic imprisonmentsentences be concurrent. 730 ILCS Ann. 5/5--7--8, CouncilCommentary, at 243 (Smith-Hurd 1997). Thus, consecutive sentenceswill be allowed in at least some instances. See 730 ILCS 5/5--7--8(b) (West 2000) (only sentence of more than 90 days will satisfyperiodic imprisonment sentence). The provision, as explained bythe council commentary, expresses only a legislative judgment thatin most cases a periodic imprisonment term tacked onto a straight-time prison sentence will serve little purpose. Here, defendantexpressly agreed to the consecutive term to accomplish a specificpurpose: his rehabilitation from alcoholism. Nothing in section 5--7--8 purports to prohibit simultaneously imposed consecutivesentences under appropriate circumstances.

The judgment of the circuit court of Lake County is affirmed.

Affirmed.

HUTCHINSON, P.J., and GILLERAN JOHNSON, J., concur.