Appeal from the Circuit Court of Vermilion County; the Hon.
HARRY I. HANNAH, Judge, presiding. Affirmed.
This appeal follows a sentence imposed under the following circumstances:
The offense for which defendant was indicted and sentenced occurred on November 14, 1963. Prior to that time defendant had been placed on probation by orders of the then County Court entered in two cases. Prior to January 1, 1964, defendant was charged with violation of the orders of probation, and on January 14, 1964, evidence of the offenses of November 14, 1963, was heard in support of such charges. Following the Court's finding of violation of probation, defendant was fined two hundred ($200) dollars, and the probation continued for the full term. The matters with regard to the violation of probation are not set out in the record except as they appear in motions filed by the defendant. On January 17, 1964, defendant was indicted for the offense occurring on November 14, 1963. It is contended that such procedure violates Article 3, Sections 3 and 4 of the Criminal Code (Ill Rev Stats 1961, c 38, §§ 3-3 and 3-4), and that the defendant had been placed in double jeopardy under the Federal and State Constitutions for the reason that the State's Attorney failed to join in one prosecution the charge of violation of probation and the indictment which is in issue in this case.
We believe that the defendant's contentions cannot be accepted for several reasons. His argument makes reference to the intention of the committee which drafted the Criminal Code as to the scope and meaning of the language of Article 3, Section 3, adopted in 1961, as set out in the comment published with the Code. The Code of Criminal Procedure, adopted in 1963, provides the procedure and the penalty with regard to the violation of probation. (Ill Rev Stats 1963, c 38, § 117-3.)
It is noted that the committee drafting the Code of Criminal Procedure was composed of the same personnel as that drafting the Criminal Code of 1961. In discussing the proposed limitation upon the sentence to be imposed for minor violations of probation, the Court said:
"If the violation consists of another crime, then he should be tried for such crime and punished accordingly, in addition to the five years for violating his probation. But the Committee felt that if he was truly worthy of probation on the original offense, and he should only get it if he is, then a minor violation of probation is not worth more than five years. If it is a major violation constituting a new crime, then give him a trial and appropriate punishment for it."
It seems apparent that in terms of the intent of the language of the legislation, the violation of probation is not an offense which must be joined in a single prosecution contemplated in the language of Article 3, Section 3 of the Criminal Code. That provision requires the charging of all offenses arising from the specific acts or conduct of the defendant occurring at a specified place and time and has been described as "compulsory joinder." The single prosecution of the several offenses contemplated by Article 3, Section 3(b), is the bringing of the accused under the jurisdiction of the court for the purpose of determining guilt or innocence and the defendant is entitled to a jury trial and he must be proven guilty beyond a reasonable doubt upon such issues.
On the contrary, where the defendant is charged with violation of probation he is within the jurisdiction of the Court, he has been convicted or has pleaded guilty to the offense with which charged, and in determining whether or not the probation has been violated, he is not entitled to trial by jury nor must he be proven guilty beyond a reasonable doubt. People v. Price, 24 Ill. App.2d 364 at page 373, 164 N.E.2d 528.
Article 117, Section 3 of the Code of Criminal Procedure (Ill Rev Stats 1963, c 38, § 117-3) creates a mandatory, statutory condition to probation that the individual shall not violate any penal statute or ordinance of any jurisdiction. When such person is found guilty of violating this condition of probation he becomes subject to imprisonment or other punishment for the offense of which he has previously been found guilty. Invoking punishment for violation of probation does not, in any sense, undertake to punish for the offenses committed subsequent to the granting of probation. Granting probation only defers the imposition of sentence as to the matter wherein probation was granted. People v. Koning, 18 Ill. App.2d 119, 151 N.E.2d 103; People v. Kostaken, 16 Ill. App.2d 395, 148 N.E.2d 615.
There is an apparent fallacy in defendant's argument which states that at the hearing on probation, the defendant ". . . was convicted on said charge . . .", referring to the offense for which indicted on January 17, 1964. At the hearing on probation, he was, of course, only found guilty of violation of probation. That hearing did not purport to be either a conviction or acquittal of the offense for which the defendant was indicted on January 17, 1964, within the meaning of Article 3, Section 4 of the Criminal Code (Ill Rev Stats 1961, c 38, § 3-4). As noted, entirely different requirements for conviction control as to the latter offense.
Authority in the case law supports our conclusion. In People v. Kuduk, 320 Ill. App. 610, 51 N.E.2d 997, defendant had been acquitted of a manslaughter charge but evidence of such charge was heard in proceedings to revoke probation. It was held that defendant was not made subject to double jeopardy as there was no abuse of the court's discretion since the standards of proof differed in the separate proceedings for revocation of probation as distinguished from trial upon the criminal charge. See also People v. Koning, 18 Ill. App.2d 119, 151 N.E.2d 103.
In People v. Kostaken, 16 Ill. App.2d 395, 148 N.E.2d 615, defendant had been granted probation but he was charged with violation thereof. Subsequently, defendant was indicted upon a charge of robbery. The Court refused a demand for trial upon the indictment and entered an order revoking probation upon evidence concerning the alleged robbery. Following the revocation, the indictment for robbery was dismissed. Upon appeal from the order revoking probation, defendant claimed, amongst other things, that he had been placed in double jeopardy. At page 398, the court carefully pointed out that one who is on probation is not in the same category as one charged by information or indictment:
". . . because he is free by clemency of the court which had conditionally postponed his sentence provided he faithfully fulfill the requirements of probation which are imposed by statute. . . . This Court, however, did not attempt to place the probationer in the same position as one accused by indictment even though the condition alleged to have been violated is the commission of another crime."
We do not believe that this opinion is authority to infer that following a hearing in which probation is revoked, trial upon the indictment for the latest offense ...