dissenting:
I dissent from the conclusion that contempt is an authorized means of punishing a violation of a condition of periodic imprisonment. By statute, periodic imprisonment “is a sentence of imprisonment.” It is served pursuant to the force of a mittimus. (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 7—1.) It is thus clearly distinguished from a sentence of a period of probation or a sentence of conditional discharge. (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 6—2(a).) Where incarceration is a condition of probation, the defendant is sentenced to a period of probation.
Periodic imprisonment has no function in the punishment of a person who has been found not likely to commit other crimes, where the best interest of defendant and the public are served if defendant were not to receive a record of criminal incarceration, or where supervision is more appropriate than a sentence. Ill. Rev. Stat. 1975, ch. 38, par. 1005 — 6— 1(b).
Both conditional discharge and periodic imprisonment were first provided in the Unified Code of Corrections, effective January 1,1973. In the legislative scheme conditional discharge was made a part of the article in such Code dealing with probation. The administration and enforcement of probation and conditional discharge have common statutory characteristics and provisions. Periodic imprisonment, however, was legislatively placed in a separate article of the Code with its own complete statement of provisions for administration and enforcement.
A sentence for contempt was deemed to serve an historic function where the purpose was to enforce a condition of probation, or punish a violation of such a condition without going so far as to impose a “sentence of imprisonment.” There may be such a function in the administration of conditional discharge. It is not logically possible, however, to find such a function where a sentence of imprisonment has been imposed and continues in effect.
The principal opinion finds acceptable the hypothesis that a sentence for contempt may be properly used to enlarge a sentence of imprisonment already imposed. The statute (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 6—2(a)), only authorizes the court to modify or revoke the sentence of periodic imprisonment. The statute does not authorize “enlarging the conditions” of periodic imprisonment as is the provision for probation. Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 6—4(e).
A sentence of imprisonment for a criminal offense must be made within the limits of punishment fixed by law. (People v. Schmidt (1957), 10 Ill. 2d 221, 139 N.E.2d 726.) So it was held that a prohibition against split sentencing was not a legislative usurpation of judicial power. (People v. Braddock (1974), 17 Ill. App. 3d 73, 308 N.E.2d 74. See also People v. Robinson (1974), 20 Ill. App. 3d 152, 313 N.E.2d 213.) One can not agree that the statutory procedure for modifying or revoking periodic imprisonment is an invasion of any inherent power of the court.
The fallacy of the opinion may not be so apparent where the initial sentence is for 30 days. The effect of an additional sentence for contempt is more apparent, however, if the initial periodic imprisonment is for the lesser of 2 years or the longest term that can be imposed for the offense. (Ill. Rev. Stat. 1975, ch. 38, par. 1005 — 7—1(d).) A period of incarceration enlarged by a sentence for contempt is not a part of the original sentence by operation of law as is mandatory parole. People ex rel. Michael Scott v. Israel (1977), 66 Ill. 2d 190, 361 N.E.2d 1108.
The statute permits suspension or revocation of the terms of release or the court may modify the sentence. No further powers, inherent or otherwise, are required. The opinion imposes the anomalies of presumably interrupting the term of sentence provided on one mittimus while defendant serves a period of incarceration by reason of a second mittimus issued under the sentence of contempt. (See Ill. Rev. Stat. 1975, ch. 75, par. 4.) The question becomes particularly cumbersome if the defendant is initially committed upon a mittimus to the Department of Corrections to serve the term of periodic imprisonment. See Ill. Rev. Stat. 1975, ch. 38, par. 1005 — 7—3.
Section 5 — 7—2(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1975, ch. 38, par. 1005 — 7—2(c)) provides that upon modification or revocation of periodic imprisonment credit for time served upon such sentence shall be credited to a subsequent sentence of imprisonment. There is no apparent reason for imposing a sentence for contempt other than to avoid the effect of such provision.
I would conclude that the superimposing of a sentence for contempt upon a term of periodic imprisonment is not lawful under the statute.