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People v. Price

FEBRUARY 16, 1960.

PEOPLE OF THE STATE OF ILLINOIS, DEFENDANT IN ERROR,

v.

THOMAS DAVID PRICE, PLAINTIFF IN ERROR.



Appeal from the Circuit Court of Lake county; the Hon. BERNARD M. DECKER, Judge, presiding. Judgment order affirmed. JUSTICE DOVE DELIVERED THE OPINION OF THE COURT.

On May 11, 1954, an indictment was returned by the grand jury of Lake County charging Thomas David Price with burglary and larceny. The two burglary counts were subsequently nollied and on July 20, 1954, the defendant was duly arraigned in the circuit court of Lake County and entered a plea of guilty to the crime of grand larceny and the court duly adjudged him guilty of that offense. Prior to pronouncing sentence the defendant made an application to be admitted to probation and on July 28, 1954, his application was granted and he was released on probation for five years. The terms and conditions of his probation were embraced in an order filed that day and the cause was continued for five years.

This order admitting defendant to probation and continuing the cause provided, among other things, that the defendant would not, during the term of his probation, violate any criminal law of this state, any law of the United States or any ordinance of any municipality of this state and that defendant should refrain from drinking intoxicating beverages and frequenting taverns and should be confined to the Illinois State farm at Vandalia for the first four months of his probationary period.

On July 15, 1958, the probation officer of Lake County filed his verified petition in the Circuit Court of that County which, after reciting many of the foregoing facts charged, on information and belief, that the defendant on or about the 5th and 6th day of July, 1958, entered Vince's Lounge located in North Chicago, Illinois, a place where intoxicating liquors were sold and dispensed and there consumed intoxicating beverages contrary to the order admitting him to probation. This petition further charged that on the 6th day of July, 1958, defendant, at or near a place about one-half mile east of St. Mary's road or Atkinson road in Lake County, Illinois, had carnal knowledge of a female, Diane Slattery, forcibly and against her will contrary to section 490 of Chapter 38 of the Criminal Code of this State.

The prayer of the petition was that defendant be brought before the court and that a rule be entered against him to show cause why his probation should not be revoked and terminated and judgment entered and sentence imposed upon him on his original plea of guilty to the crime of grand larceny. The same day the petition was filed the court directed a capias to issue and entered a rule on the defendant to show cause why his probation should not be revoked.

On August 7, 1958, defendant appeared in open court with counsel of his own choosing and a hearing was had. At the conclusion of the hearing the court entered an order revoking the order of July 28, 1954, admitting defendant to probation. This order found the defendant to be 23 years of age and committed him to the Illinois State Penitentiary for an indeterminate sentence as provided by law for the crime of grand larceny and fixed the minimum duration of his imprisonment at two years and fixed the maximum duration of his imprisonment at eight years. To review this judgment order and sentence the defendant has sued out a writ of error and the record is before this court for review.

Counsel for plaintiff in error states that there is no express provision of our statute for a hearing in connection with the revocation of an order admitting a defendant to probation and insists that where it appears that a defendant while on probation is charged with the commission of a criminal offense there must have been an adjudication of such substantive offense by a court having jurisdiction of such offense and a final judgment rendered adjudging defendant guilty of such subsequent substantive offense before the court granting probation can enter an order revoking the original order which admitted defendant to probation.

Counsel also insist that the summary hearing, order and ensuing sentence in the instant case "resulted from judicial usurpation of power under a law that has not been properly analyzed and clarified by our courts."

On June 10, 1911, an act providing for a system of probation authorizing the suspension of final judgment and the imposition of sentence upon persons found guilty of certain defined offenses and legalizing their ultimate discharge without punishment was approved by the Governor of this State and became the basis of our present probation system. As amended, this law authorizes a court, in which a defendant not previously convicted of a felony who has been found guilty, either by verdict of a jury or by the finding of a court of any criminal offense except certain enumerated crimes, to admit such a defendant to probation. The entry of such an order is discretionary with the judge hearing the case and can only be entered after judgment has been rendered and nothing remains to be done by the court except pronounce sentence. Before granting probation it must appear to the satisfaction of the court both that the defendant is not likely to again engage in an offensive or criminal course of conduct and that the public good does not require that the defendant shall suffer the penalty imposed by law. (Ill. Rev. St. 1959, Chap. 38, sec. 785.)

The following section of the act provides that orders granting or refusing release on probation shall be entered of record and if granted the judge shall enter an order continuing the cause in all cases (other than the violation of a municipal ordinance) for a period not exceeding five years and shall by such order fix and specify the terms and conditions of the probation of the defendant. It is further provided that a cause continued pursuant to the provisions of the act shall be deemed subject to the jurisdiction of court in which it is pending, or any judge thereof, for the full period of its continuance, during which time orders may be entered with respect to the conditions of probation, or final sentence may be imposed without the formal setting aside of such order of continuance. (Ill. Rev. St. 1959, Chap. 38, sec. 786.)

The act further provides that at any time during the period of probation the court may, upon report by a probation officer or other satisfactory proof of the violation by the probationer of any of the conditions of his probation, revoke and terminate the same and issue a warrant for the arrest of the probationer. It is then provided that upon the probationer being brought before the court for violation of his probation, the court may enter a rule upon the probationer to show cause why his probation should not be terminated and judgment entered, and sentence imposed upon the original conviction. The statute then provides that if, upon the probationer being brought before the court, the court shall be of the opinion that the interests of justice do not require the imposition of sentence and that the probationer should be re-committed to the care of the probation officer, the court may discharge the probationer from arrest, and may re-commit him to the care of the probation officer, subject, however, to the maximum limitation of the probation period as therein provided. "But" continues this section, "if the court shall be of the opinion that the interests of justice require the imposition of sentence the same shall then be imposed. And in computing the period for which he is to be confined, the time between his release upon probation and his return to custody shall not be taken to be any part of the term of his sentence." (Ill. Rev. St. 1959, Chap. 38 sec. 789.)

Any order changing, modifying or terminating any probation period is subject to review by the appellate courts of this state which are given final jurisdiction to hear and determine all such appeals and writs of error "and such courts" continues the act, "may affirm, reverse or modify such orders so that the same shall conform to the provisions of this act, and so that its purposes and the interests of justice and society shall be best subserved." (Ill. Rev. St. 1959, Chap. 38, sec. 798.)

In People v. Kostaken, 16 Ill. App.2d 395, a writ of error was sued out of the appellate court of the First District to review an order of the criminal court of Cook County revoking the probation of John Kostaken. It appeared in that case that on January 27, 1950, Kostaken had entered a plea of guilty to the crime of armed robbery and on the same day was admitted to probation for a period of five years. On January 9, 1953, Kostaken was arrested charged with the robbery of Guiseppi Bassi and a warrant for violating his probation was issued on January 15, 1953. Thereafter he was indicted for the robbery of Bassi and on January 30, 1953, he was released on bail.

On June 15, 1954, a hearing was had upon an oral rule which had been entered by the court requiring the defendant to show cause why the order admitting him to probation should not be revoked. At the conclusion of the hearing the court revoked the probation and sentenced him to the penitentiary. A month or so later Kostaken made a motion to vacate that order and testimony was again taken. At the conclusion of the hearing of the motion to vacate, the court denied that motion and Kostaken sued out of the Appellate Court of the First District a writ of error to review the action of the criminal court.

In the Appellate Court Kostaken contended (1) that he had been deprived of a speedy trial; (2) that he had been placed in double jeopardy; (3) that he was not informed of the nature of the charge against him and (4) that he was deprived of his right to a trial by jury. The court considered these several contentions and concluded ...


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