5 ILCS 70/4 (West 2014).¶ 39 Although we have not found a case from this court directly on point, we find the appellate court decision in People v. Denier , 76 Ill. App. 3d 214, 31 Ill.Dec. 755, 394 N.E.2d 1073 (1979), to be instructive. The issue in Denier concerned whether, upon revocation of probation, defendant was entitled to elect to be sentenced under the law as it existed at the time of his offense or under the law in effect on or after the effective date of the amendatory act where his sentence of probation occurred prior to the effective date of the amendment.
5 ILCS 70/4 (West 2014). ¶ 39 Although we have not found a case from this court directly on point, we find the appellate court decision in People v. Denier, 76 Ill. App. 3d 214 (1979), to be instructive. The issue in Denier concerned whether, upon revocation of probation, defendant was entitled to elect to be sentenced under the law as it existed at the time of his offense or under the law in effect on or after the effective date of the amendatory act where his sentence of probation occurred prior to the effective date of the amendment.
¶ 26 Section 4 of the Statute on Statutes does not give the defendant the right to be sentenced under a law that is not in full force and effect at the time of his sentence and is only applicable in cases which a new law had become effective prior to the date of the actual sentence. People v. Denier , 76 Ill. App. 3d 214, 216, 31 Ill.Dec. 755, 394 N.E.2d 1073 (1979). However, where defendant's sentence is vacated on appeal and the cause is remanded for resentencing, under section 4 of the Statute on Statutes, a defendant may elect to be sentenced under the law in effect at the time of resentencing.
However, courts have ruled that in granting a revoked petitioner credit for time which he spent in jail, as the court did in the case at bar from March 11, 1980, date of arrest on second petition to revoke, to May 23, 1980, date of resentencing, the court implicitly denies a defendant credit for the time served on probation. ( People v. Smithson (1st Dist. 1978), 65 Ill. App.3d 564, 382 N.E.2d 536; People v. Denier (2d Dist. 1979), 76 Ill. App.3d 214, 394 N.E.2d 1073. Contra, People v. Brogan (4th Dist. 1979), 76 Ill. App.3d 957, 395 N.E.2d 408.
) Therefore, defendant, having already been sentenced to probation for these crimes in 1974, did not have the right to elect to be sentenced for them under the new act. ( People v. Mitchell (1979), 76 Ill. App.3d 878, 395 N.E.2d 696; People v. Denier (1979), 76 Ill. App.3d 214, 394 N.E.2d 1073; People v. Perkins (1979), 67 Ill. App.3d 911, 385 N.E.2d 184.) Clearly, if defendant was not entitled to elect to be sentenced under the new act for these crimes, then he could not be said to have elected to forgo the benefits of the prior credit provision.
We reasoned that probation constituted a sentence within the meaning of the code, and so long as any sentence whatsoever was imposed prior to the effective date, the new statute did not apply. Accord, People v. Denier (1979), 76 Ill. App.3d 214, 394 N.E.2d 1073; People v. Perkins (1979), 67 Ill. App.3d 911, 385 N.E.2d 184. In contrast, we have held that a defendant whose conviction is reversed and who is later retried and convicted, is entitled to election if his resentencing occurs after February 1, 1978. ( People v. Rea (1979), 80 Ill. App.3d 77, 399 N.E.2d 302.) Our decision in Rea was based on the principle that reversal of a conviction renders the judgment, and therefore the accompanying sentence, a nullity.