Appeal from the Circuit Court of Cook County; the Hon. THOMAS
H. FITZGERALD, Judge, presiding. Affirmed.
MR. PRESIDING JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT.
This appeal is taken from a judgment of the trial court finding defendant guilty of violation of a three-year probation, revoking said probation and sentencing the defendant to the State penitentiary for a term of not less than three and not more than five years. Defendant raised the following issues on appeal. First the court's denial of defendant's motion for continuance resulting in failure to grant defendant an adequate hearing of the alleged violation of probation. Second, the failure of the police officers to advise him of his right to counsel, his right not to speak and to warn him that anything said by him could be held against him.
On April 15, 1964, defendant was found guilty of the crime of unlawful possession of narcotic drugs. He was granted probation for three years, the first nine months of which were to be served in the County Jail. The order of probation also provided "that said defendant shall not, during the term of said probation, violate any criminal law of the State of Illinois, or any ordinance of any municipality of said State."
On June 21, 1965, the Probation Department filed an application for warrant against defendant for violation of probation for failure to report and for having moved so that his whereabouts were unknown. On July 29, 1965, defendant appeared in the Circuit Court of Cook County, Municipal Division, charged with disorderly conduct. He was discharged. He was again taken into custody on the warrant previously issued for violation of probation. The Public Defender was appointed counsel to represent him. On August 4, 1965, the Court ordered a rule to show cause why the probation should not be terminated and revoked and a hearing of said rule was set for August 6, 1965, before Judge Thomas H. Fitzgerald who discharged the rule and recommitted defendant to probation.
On September 20, 1965, the defendant was found guilty of theft and disorderly conduct by Judge Epton and sentenced to serve 30 days in the County Jail for the theft and fined $100 for disorderly conduct. On October 8, 1965, the Probation Department again filed an application for warrant for violation of probation. A stop was placed on the warrant in November 1965.
On August 17, 1966, at 3:00 a.m., defendant was arrested in the Charles Hotel, 1941 Warren Blvd., Chicago, Illinois, and charged with the possession of a hypodermic needle and syringe and resisting arrest. On August 31, 1966, defendant failed to appear in court. On September 8, 1966, defendant was taken into custody on the warrant for violation of probation. On September 16, 1966, the Public Defender was appointed counsel for the defendant. At the hearing on September 26, 1966, before Judge Thomas H. Fitzgerald, counsel for the defendant objected to the proceeding stating:
"I think that when the matter charged on a probation violation is the commission of a crime and since in a probation violation hearing the normal rules of evidence applicable in a criminal court do not apply, I would prefer to see this charge made in a criminal court rather than in this type of hearing."
The judge did not agree and proceeded with the hearing. One of the arresting officers, Walter Pankiewicz, then testified that he was assigned to the Narcotics Unit and on August 17, 1966, saw the defendant at the Charles Hotel in Apartment 32 with two other persons. The public defender then asked for a continuance stating:
"This in effect is the trial of the criminal case, I have had about three minutes with this defendant and I feel that he would be denied the effective assistance of counsel if we proceeded at this time."
The court denied the motion for continuance saying: "Your office was appointed for him, . . . back on September 16. There was a Public Defender appointed."
Officer Pankiewicz testified further that he observed defendant and another person in the room throw two hypodermic needles out of a window. The needles were retrieved shortly thereafter, and the defendant admitted one of the needles was his. This testimony was corroborated by Officer Robert Frawley. The defendant denied ownership of the needle and the throwing of it out of the window.
Defendant cites ten cases in support of his contention that it was error to deny his motion for continuance. All of them hold that in proceedings to revoke probation on ground of violation of its conditions, the State was not required to prove violation beyond a reasonable doubt. They also hold that the decision of a motion for a continuance is within the sound discretion of the court and will not be disturbed unless there is a showing of abuse of such discretion. Five of the cases cited did not involve revocation of probation.
In People v. Burrell, 334 Ill. App. 253, 79 N.E.2d 88 (1948), the Illinois Appellate Court reversed an order revoking probation for the reason that defendant, who was a minor, had no attorney representing him at the hearing of the violation of probation.
In People v. Kostaken, 16 Ill. App.2d 395, 148 N.E.2d 615 (1958), the court held that a probationer is entitled to a fair hearing in determining whether or not he has violated a condition of his probation, and the State need not establish beyond a ...