ILLINOIS OFFICIAL REPORTS

Appellate Court

People v. Munoz, 2011 IL App (3d) 100193

Appellate Court

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

LIZARRO MUNOZ, Defendant-Appellant.

 District & No. Third District

Docket No. 3-10-0193

Filed December 19, 2011

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

On appeal from the conviction and sentence imposed on defendant for

criminal sexual assault, the DNA analysis fee was vacated on the ground

that defendant was already in the DNA database as the result of a prior

case, and the indeterminate term of mandatory supervised release

imposed by the Department of Corrections was vacated as void, since it

is the trial court’s duty, not the department’s, to sentence defendant to a

term of MSR within the statutory guidelines, and on remand, the trial

court was directed to sentence defendant to a term of MSR as provided

by section 5-8-1(d)(4) of the Unified Code of Corrections and enter a

corrected sentencing order.

Decision Under 

Review

Appeal from the Circuit Court of Peoria County, No. 07-CF-1489; the

Hon. James E. Shadid, Judge, presiding.

Judgment Affirmed in part and vacated in part; cause remanded with directions. 
Counsel on

Appeal

Jean Park, of State Appellate Defender’s Office, of Chicago, for

appellant.

Jerry Brady, State’s Attorney, of Peoria (Terry A. Mertel and Dawn D.

Duffy, both of State’s Attorneys Appellate Prosecutor’s Office, of

counsel), for the People.

Panel JUSTICE LYTTON delivered the judgment of the court, with opinion. 

Presiding Justice Carter and Justice Wright concurred in the judgment

and opinion.

OPINION

¶ 1 Defendant Lizarro Munoz was convicted of criminal sexual assault (720 ILCS 5/12-

13(a)(1) (West 2006)) and sentenced to 17 years in prison plus 2 years of mandatory

supervised release (MSR). On appeal, he argues that (1) the Department of Corrections’

(DOC) records should be corrected to comply with the trial court’s sentence, and (2) the

DNA testing and $200 analysis fee should be vacated. We affirm in part, vacate in part, and

remand with directions.

¶ 2 Defendant pled guilty to criminal sexual assault and aggravated robbery. In exchange for

defendant’s plea, the State agreed to dismiss the aggravated robbery charge and suggest a

sentencing cap of 17 years in prison and 2 years of MSR. Following the State’s presentation

of the factual basis for the plea, the trial court sentenced defendant to the agreed terms and

ordered defendant to submit to DNA testing and pay an analysis fee. The trial court’s written

sentencing judgment reflected defendant’s sentence of 17 years’ imprisonment and a 2-year

term of MSR. After sentencing, the Department of Corrections inmate records listed

defendant’s MSR terms as “3 Yrs to Life-To Be Determined.”

¶ 3 I. Indeterminate Term of MSR Imposed by DOC

¶ 4 A

¶ 5 Defendant claims that the DOC lacked the authority to impose an indeterminate term of

MSR of three years to life when the trial court sentenced him to two years of MSR.

¶ 6 The imposition of MSR is statutorily required. See 730 ILCS 5/5-8-1(d) (West 2006).

When construing the meaning of a statute, the primary objective of this court is to ascertain

and give effect to the intent of the legislature. Southern Illinoisan v. Illinois Department of

Public Health, 218 Ill. 2d 390 (2006). That intent is best determined by examining the

language of the statute itself; where the language is clear and unambiguous it must be given

-2-
effect. Orlak v. Loyola University Health System, 228 Ill. 2d 1 (2007). A statute should be

read as a whole and construed so as to give effect to every word, clause and sentence. People

ex rel. Department of Corrections v. Hawkins, 2011 IL 110792. It should not be read so as

to render any part superfluous or meaningless. Hawkins, 2011 IL 110792, ¶ 23. Statutory

construction is a question of law which we review de novo. People v. Alcozer, 241 Ill. 2d 248

(2011).

¶ 7 Under the Unified Code of Corrections (Code) (730 ILCS 5/1-1-1 et seq. (West 2006)),

a sentence is defined as the “disposition imposed by the court on a convicted defendant.” 730

ILCS 5/5-1-19 (West 2006). The pronouncement of a sentence is the judicial act that

conforms to the judgment of the court. People v. Allen, 71 Ill. 2d 378 (1978). A sentence

imposed by the court in a criminal case must be authorized by law. People v. Majer, 131 Ill.

App. 3d 80 (1985). The dispositions available to courts include probation, conditional

discharge and a term of imprisonment. 730 ILCS 5/5-5-3 (West 2006).

¶ 8 Section 5-8-1(d) of the Code states that “every sentence shall include as though written

therein a term [of MSR] in addition to the term of imprisonment.” 730 ILCS 5/5-8-1(d)

(West 2006); see also People v. Whitfield, 217 Ill. 2d 177 (2005) (MSR is part of a

defendant’s sentence). The MSR term for the offense of criminal sexual assault “shall range

from a minimum of 3 years to a maximum of the natural life of the defendant.” 730 ILCS

5/5-8-1(d)(4) (West 2006).

¶ 9 The Code also provides the DOC, through the Prisoner Review Board, the ability to

terminate a term of MSR early. 730 ILCS 5/3-3-8 (West 2006). Article 3 of the Code governs

the Department of Corrections and addresses the powers and duties of the Prisoner Review

Board. 730 ILCS 5/3-1-1 et seq. (West 2006). Under section 3-3-8(b), the Prisoner Review

Board may enter an order releasing a defendant from MSR when it determines “that he is

likely to remain at liberty without committing another offense.” 730 ILCS 5/3-3-8(b) (West

2006). The Prisoner Review Board is also authorized to set conditions for parole and

mandatorysupervised release imposed under section 5-8-1(d) ofthe Code. 730 ILCS 5/3-3-7,

3-14-2.5 (West 2006). However, article 3 contains no language that gives the board the

power to impose a term of MSR required under section 5-8-1(d).

¶ 10 Defendant maintains that, under the plain language of these statutes, the powerto impose

an MSR term is exclusively the function of the trial court. We agree.

¶ 11 Construing the provisions of the Code as a whole, the trial court possesses the exclusive

authority to sentence a defendant. Although the Code authorizes the DOC to make final

determinations involving the amount of time a defendant actually spends under MSR, the

grant of authority to impose MSR is located within the section of the Code addressing the

sentencing power of the trial court. See 730 ILCS 5/5-8-1 (West 2006). Thus, the structure

of the statute demonstrates that the legislature intended to give the trial court sole authority

to impose a term of MSR as part of a defendant’s sentence. See 730 ILCS 5/5-1-19 (West

2006); People v. Rinehart, 406 Ill. App. 3d 272 (2010).

¶ 12 In this case, the DOC imposed a term of MSR under section 5-8-1(d)(4) of the Code. 730

ILCS 5/5-8-1(d)(4) (West 2006). However, it is the trial court’s duty, not the DOC’s, to

sentence a defendant to a term of MSR within the statutory guidelines. 730 ILCS 5/5-1-19

-3-
(West 2006); Rinehart, 406 Ill. App. 3d at 281. As a result, defendant’s MSR term of three

years to natural life, as imposed by the DOC, is void. See People v. Thompson, 209 Ill. 2d

19 (2004) (a sentence not authorized by statute is void).

¶ 13 B

¶ 14 Defendant requests that we direct the DOC to comply with the trial court’s sentencing

order and reinstate his MSR term of two years. To do so, however, would be to impose a

term of MSR that is void for lack of statutory authority. See 730 ILCS 5/5-8-1(d)(4) (West

2006) (for the offense of criminal sexual assault, term of MSR shall range from a minimum

of three years to a maximum of natural life); People v.Thompson, 209 Ill. 2d 19 (2004). We

therefore vacate the term of MSR imposed by the DOC and remand to the trial court with

directions to impose MSR as provided under section 5-8-1(d)(4) of the Code.

¶ 15 II. DNA Analysis Fee

¶ 16 Defendant also claims that the trial court exceeded its statutory authority byordering him

to pay a DNA fee because he submitted a DNA sample and paid the fee in a prior case.

¶ 17 This issue was recently addressed by our supreme court in People v. Marshall, 242 Ill.

2d 285 (2011). In that case, the court held that section 5-4-3 of the Code (730 ILCS 5/5-4-3

(West 2006)) authorizes a trial court to order the taking, analysis and payment of the analysis

fee of a qualifying offender’s DNA only where the defendant is not currently registered in

the DNA database. Marshall, 242 Ill. 2d at 303. In this case, the State concedes that

defendant’s DNA is already on file. We therefore vacate that portion of the court’s order

requiring additional testing and ordering defendant to pay the $200 DNA analysis fee.

¶ 18 III. Conclusion

¶ 19 We vacate the indeterminate term of MSR imposed by the DOC, vacate the $200 DNA

analysis fee, and otherwise affirm the trial court’s judgment. On remand, the trial court is

directed to sentence defendant to a term of MSR as provided by section 5-8-1(d)(4) of the

Code and enter a corrected sentencing order. See 730 ILCS 5/5-8-1(d)(4) (West 2006).

Accordingly, the judgment of the circuit court of Will County is affirmed in part and vacated

in part, and the cause is remanded with directions.

¶ 20 Affirmed in part and vacated in part; cause remanded with directions.

-4-