                           NO. 4-06-0021        Filed 1/9/07

                       IN THE APPELLATE COURT

                            OF ILLINOIS

                          FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,   )    Appeal from
          Plaintiff-Appellee,          )    Circuit Court of
          v.                           )    Macon County
CHARLES J. ANDERSON,                   )    No. 01CF369
          Defendant-Appellant.         )
                                       )    Honorable
                                       )    James R. Coryell,
                                       )    Judge Presiding.
_________________________________________________________________

          PRESIDING JUSTICE STEIGMANN delivered the opinion of

the court:

          In March 2001, the State charged defendant, Charles J.

Anderson, with burglary (720 ILCS 5/19-1(a) (West 2000)).      In May

2002, the trial court granted defendant's request to participate

in counseling under the Drug Court Treatment Act (730 ILCS 166/1

through 35 (West 2002)) in exchange for (1) defendant's jury-

trial waiver and (2) his stipulation to the evidence that could

be considered at a bench trial on the burglary charge in the

event he was unsuccessfully dismissed from the Act's drug-treat-

ment program.

          In December 2005, the trial court found that defendant

had violated the terms of the drug-treatment program and ordered

him removed from it.   The court then took judicial notice of

defendant's earlier waiver and stipulation and ultimately sen-

tenced him to 14 years in prison for burglary.
          Defendant appeals, arguing that (1) the trial court

erred by removing him from the drug-treatment program because it

had no jurisdiction to do so and (2) he is entitled to an addi-

tional two days' credit against his sentence.    Because we agree

only with defendant's second argument, we affirm as modified and

remand with directions.

                           I. BACKGROUND

          As earlier stated, in May 2002, defendant was accepted

into the drug-treatment program in exchange for his jury-trial

waiver and his stipulation to the evidence that would be consid-

ered at a bench trial in the event he was unsuccessfully dis-

missed from the drug-treatment program.    That written stipulation

of evidence made clear that defendant committed the March 2001

burglary with which the State had charged him.

          To participate in the drug-treatment program, defendant

was also required to sign a Macon County drug-court-participant

agreement (hereinafter the agreement).     The agreement was 3 1/2

pages long and imposed multiple requirements upon defendant, such

as his participation in drug-treatment sessions.     The agreement

provided, in pertinent part, as follows:

               "1.   I agree to participate in the

          [d]rug [c]ourt [p]rogram for a period of up

          to 24 months, during which time the charges

          pending against me in this cause will be held


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in abeyance pending successful completion of

the program.

     2.    I understand that upon successful

completion of the [d]rug [c]ourt [p]rogram

that this case will be dismissed, and I will

not be prosecuted for the offenses alleged

herein.

     3.    I hereby waive my right to a prelim-

inary hearing, my right to a speedy trial, my

right to a trial by jury, and my right to

confront and cross[-]examine the witnesses

against me.    I have executed a [s]tipulation

of [e]vidence in this case[,] pursuant to

which I agree that all police reports, foren-

sic reports, and all other reports relevant

to the charge(s) filed in my case are admis-

sible as evidence against me at trial.

     ***

     5.    I agree to obey all laws, and to

abstain from the use of controlled

substances, cannabis, or alcohol.

                      * * *

     14.    I understand that I may be unsuc-

cessfully terminated from the [d]rug [c]ourt


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          [p]rogram if:

               A.    I fail to comply with any of

               the conditions of the [d]rug

               [c]ourt [p]rogram;

               B.    I commit any criminal offense;

               C.    I request unsuccessful termina-

               tion from the program.

               ***

               16.     I understand that upon unsuccessful

          termination from the [d]rug [c]ourt [p]rogram

          this cause will proceed to immediate trial by

          the [c]ourt.    I understand that the aforemen-

          tioned [s]tipulation of [e]vidence will con-

          stitute the evidence received by the [c]ourt

          at trial."

          Prior to defendant's signing the agreement, the trial

court explained its provisions to him in open court.     The court

also admonished defendant pursuant to Supreme Court Rule 402(a)

(177 Ill. 2d R. 402(a)).    After defendant indicated he understood

and agreed, the court accepted and entered defendant's agreement

and stipulation of evidence.

          In January 2003, the trial court's docket entry re-

vealed, without any further explanation, that the cause was

reallotted for a bench trial the following week.      At that later


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hearing, the court summarily dismissed defendant from the drug-

treatment program, reviewed the May 2002 stipulation, and indi-

cated that it contained a sufficient factual basis to support a

conviction for burglary.   In March 2003, the court sentenced

defendant to 14 years in prison on the original burglary charge.

           Defendant appealed, arguing, in part, that his rights

to due process were violated when he was not afforded a hearing

prior to being dismissed from the drug-treatment program.   This

court agreed and reversed and remanded.   People v. Anderson, 358

Ill. App. 3d 1108, 1116, 833 N.E.2d 390, 396 (2005).

           On remand in September 2005, the State filed a motion

to terminate defendant from the drug-treatment program.   In

December 2005, after conducting several evidentiary hearings, the

trial court found that defendant had violated the program's

conditions by committing a theft in January 2003.   The court

ordered that defendant be "revoked" from the drug-treatment

program.

           At a sentencing hearing later in December 2005, the

trial court considered the presentence investigation report

(PSI), which showed, in pertinent part, that (1) defendant's

first burglary conviction occurred in 1955, (2) since that time,

he had 10 more burglary convictions, and (3) he had 2 convictions

for escaping from a penal institution and numerous theft convic-

tions.   After considering the evidence, the PSI, and counsel's


                               - 5 -
arguments, the court sentenced defendant to 14 years in prison

for burglary and awarded him 1,399 days of credit for time

previously served in jail or prison.

          This appeal followed.

                           II. ANALYSIS

  A. Defendant's Claim That the Trial Court Lacked Jurisdiction
      To Terminate His Participation in the Drug-Treatment
                Program and Sentence Him to Prison

          Defendant first argues that because his participation

in the drug-treatment program was for a period of two years that

ended on May 17, 2004, the trial court had no authority in

December 2005 to revoke his participation in that program and

sentence him to prison.   Specifically, he contends that because

the State did not file a petition to terminate his participation

in the drug-treatment program until September 2005, the State had

taken no action to toll the two-year duration of the drug-treat-

ment program.   In making this argument, defendant seeks to draw a

parallel to section 5-6-4(a) of the Unified Code of Corrections

(730 ILCS 5/5-6-4(a) (West 2002)), dealing with the revocation of

probation, which provides the following:

                "Personal service of the petition for

          violation of probation or the issuance of

          such warrant, summons[,] or notice shall toll

          the period of probation *** until the final

          determination of the charge, and the term of


                               - 6 -
          probation *** shall not run until the hearing

          and disposition of the petition for viola-

          tion."

We are unpersuaded.

          A critical problem with defendant's contention is that

the Act, unlike the Unified Code, contains no language setting

forth how long a defendant's participation in the drug-treatment

program shall be.   In contrast, section 5-6-2(b) of the Unified

Code (730 ILCS 5/5-6-2(b) (West 2002)) explicitly sets forth how

long a defendant's period of probation shall be--providing, for

example, that the period of probation for a Class 2 felony (like

burglary) shall not exceed four years (730 ILCS 5/5-6-2(b)(1)

(West 2002)).   No need exists for the Act to contain a provision

to toll the length of a defendant's participation in a drug-

treatment program because no statutory time limit for such

participation exists.

          Defendant concedes that the drug-treatment program

differs from probation in that probation is a sentence, while

participation in the drug-treatment program is preadjudicatory,

as this court noted in Anderson, 358 Ill. App. 3d at 1112-13, 833

N.E.2d at 393-94.   That difference may account for why the

legislature has not seen fit to be as explicit and demanding

regarding a defendant's participation in a drug-treatment program

under the Act as the legislature has been regarding sentences of


                               - 7 -
probation and conditional discharge, which occupy all of article

6 of the Unified Code.   See 730 ILCS 5/5-6-1 through 5-6-4.1

(West 2002).

            In any event, the agreement defendant signed contained

no absolute deadline of 24 months.      Instead, it provided that

defendant would participate "for a period of up to 24 months,

during which time the charges pending against [him] in this cause

will be held in abeyance pending successful completion of the

program."   (Emphasis added.)   No provision of the Act nor any

other provision of law barred the State from resurrecting defen-

dant's dormant burglary charge after the initial 24 months of

defendant's participation in that program.

            Further, we are particularly disinclined to impose such

a bar under the circumstances of this case, where the State's

September 2005 motion to terminate defendant from the program was

based upon his alleged commission of a January 2003 residential

burglary and theft, which defendant was clearly informed about at

defendant's September 2003 sentencing hearing.      Testimony was

presented at that hearing concerning those charges.      Even though

this court later reversed and remanded, the evidence presented at

that hearing certainly put defendant on notice both of the

State's position and that what the State was alleging constituted

the basis for revoking defendant's participation in the drug-

treatment program.   In fact, the same evidence was presented


                                - 8 -
again at the evidentiary hearings the trial court conducted in

response to the State's September 2005 motion to terminate

defendant from the drug-treatment program.    Thus, even if the

tolling provisions of section 5-6-4(a) of the Unified Code

applied to defendant's case, the State's only failure here was a

technical one--that is, not filing an earlier motion to terminate

defendant from the drug-treatment program, thereby putting him on

notice (which the record shows he had anyway).

          B. Defendant's Claim That He Is Entitled to
               Additional Credit for Time Served

          Defendant also argues that he is entitled to two

additional days' credit for time served prior to his December

2005 sentencing.   He claims that the record shows that he is

entitled to 1,401 days of credit, yet the trial court credited

him with only 1,399 days.    The State concedes this argument, and

we accept the State's concession.    We thus remand with instruc-

tions that the court amend the sentencing order to reflect two

additional days of credit.

                            III. CONCLUSION

          For the reasons stated, we affirm the trial court's

judgment as modified and remand with directions to amend the

sentencing order as indicated.

          Affirmed as modified; cause remanded with directions.

          KNECHT and TURNER, JJ., concur.



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