Error to the Circuit Court of Champaign county; the Hon.
GROVER W. WATSON, Judge, presiding. Heard in this court at the
February term, 1951. Affirmed. Opinion filed March 7, 1951.
Released for publication April 3, 1951.
MR. PRESIDING JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT.
John W. Adams, the plaintiff in error, was indicted by the grand jury at the January Term, 1946, of Champaign county circuit court, for the offense of burglary and larceny.
On January 31, 1946, he entered a plea of guilty to Count I of the indictment, which charged burglary, and made application for probation. The application for probation was allowed on February 21, 1946 and he was admitted to probation for a period of two years; one of the conditions of probation being that he be imprisoned at the Illinois State Farm at Vandalia for the first six months of that period.
On March 11, 1947, on motion of the probation officer, and after a hearing, the court revoked the probation and sentenced plaintiff in error to the Illinois State Penitentiary for the statutory period of not less than one year and not more than life. Plaintiff in error prosecuted a writ of error to review the order revoking the probation. The Supreme Court in People v. Adams, 406 Ill. 232, held that court was without jurisdiction to review or decide questions pertaining to an order revoking a prior order granting probation for the reason that section 15 of the Probation Act (Ill. Rev. Stat. 1945, ch. 38, par. 798 [Jones Ill. Stats. Ann. 37.785]) provides for a review by the Appellate Court of any order changing, modifying or terminating the probation period, as in case of appeals from or writs of error to the circuit courts in misdemeanors, and thereupon ordered the case transferred to this Appellate Court.
(1) The court erred in fixing as part of the conditions of probation of the plaintiff in error, a term of imprisonment for six months in the State Farm at Vandalia; failed to continue the cause and lost all jurisdiction to subsequently sentence plaintiff in error to imprisonment in the penitentiary;
(2) The plaintiff in error was deprived of due process of law and his imprisonment is void.
As to the first contention the record discloses that on January 31, 1946, plaintiff in error appeared, together with his counsel, and filed a motion to quash the indictment, which was argued and overruled. The plaintiff in error was thereupon arraigned and entered a plea of guilty to Count I of the indictment. The record shows that he was fully advised as to the consequences of the plea, and persisted therein; that said plea was entered of record and judgment entered on Count I. The court found that he was 22 years of age, and he entered a motion to be admitted to probation, which was referred to the probation officer for investigation and report.
Again on February 21, 1946, the plaintiff in error appeared with his counsel, and the court heard evidence, and after a conference between the defendant and his family in the chambers, the court entered an order admitting the defendant to probation for a period of two years upon the following conditions:
(1) that said defendant be immediately imprisoned at the Illinois State Farm at Vandalia, Illinois, for a term of six (6) months,
(2) that he make restitution after his release from imprisonment to the person or persons injured or defrauded by him, and
(3) that he make contributions from his earnings for the support of his wife and children in amounts sufficient to keep them; and that he pay the costs of this prosecution in the total sum of $39.15 over a period of eighteen (18) months after he is released from imprisonment referred to above, and further that the said defendant comply with the other provisions of the Illinois Statutes and that bond for probation be fixed at $100, which is taken and approved in open court.
Plaintiff in error contends that it was error for the trial court to fix as part of the condition of his probation a term of imprisonment for six months at the State Farm at Vandalia, and cites Ill. Rev. Stat., ch. 38, par. 787 [Jones Ill. Stats. Ann. 37.774], which reads:
"That he shall be immediately imprisoned in the county jail for not more than six months, or that he shall pay immediately or within the period of his probation, a fine imposed at the time of being placed on ...