Appeal from the Circuit Court of Cook County; the Hon. NATHAN
KAPLAN, Judge, presiding. Judgments affirmed.
MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.
Defendants, Eligha Williams and Alford Garner, were jointly indicted for the offense of robbery. Both defendants were represented by the Public Defender. On September 11, 1967, both pleaded guilty. On the recommendation of the State they were admitted to probation for a term of three years. Subsequently, and in separate hearings, the same trial judge found that both defendants had violated the conditions of probation, and he terminated the probation of both defendants. Each was sentenced to the penitentiary for a term of five to eight years. Defendants' separate appeals were consolidated here for disposition.
On appeal defendant Williams contends that (1) he was denied due process in the revocation hearing when he was sentenced, because he was not allowed to present evidence or mitigating circumstances in his behalf; (2) he was denied effective representation of counsel when the trial court refused to grant defendant Williams a continuance to prepare his case for hearing on the rule to show cause why his probation should not be terminated; and (3) the sentence imposed was excessive. On appeal, defendant Garner contends only that his sentence was excessive.
The record shows that when defendants pleaded guilty to the offense of robbery of Joseph Gillen, the court held an extended hearing in aggravation and mitigation for both defendants. Defendant Garner, aged 37, had a lengthy record for vagrancy, drunkenness and damage to property. There were no felony convictions. Defendant Williams, aged 20, also had a record for the same type of offenses as Garner, and no felony convictions. After a consideration of the facts presented, and upon the recommendation of the State, both defendants were admitted to probation. At that time, the trial judge informed the defendants that he was giving them a chance to set themselves straight, and if they returned before him for a violation of their probation terms, he would impose sentences on them in conformity with the statutory provisions dealing with robbery.
As to defendant Garner, the record shows that on November 4, 1968, at the hearing of a rule to show cause why his probation should not be terminated and sentence imposed upon his original conviction, evidence was presented to show that in April 1968 Garner had been convicted of criminal damage to property and sentenced to serve one year at the State Farm in Vandalia. The court, after reviewing the original findings on the robbery charge, sentenced defendant Garner on that charge to a term of five to eight years in the state penitentiary.
As to defendant Williams, the record shows that a rule to show cause why Williams' probation should not be terminated was issued on December 2, 1968. The Public Defender entered his appearance on behalf of defendant Williams on December 3, 1968. The matter was assigned to the original trial judge and continued to December 11, 1968. After a number of continuances, the matter came up for hearing on January 31, 1969. At that time, counsel for defendant Williams asked for another continuance, stating that this was the first time he had a chance to talk with defendant, and he wanted to check over allegations as to the defendant leaving the state without notifying his probation officer, entering the Armed Services and subsequently going AWOL from that service. It was then shown by the State that on October 21, 1968, defendant Williams was convicted of theft and sentenced to serve 60 days in the House of Correction. It further appeared that defendant Williams served the 60 days and had not appealed. The trial court denied a continuance and proceeded with the hearing on the rule to show cause and terminated the probation of defendant Williams. Also, the court denied the request of defendant's counsel to present mitigation evidence on behalf of Williams prior to sentencing. The court then sentenced defendant on the original conviction of robbery to a term of five to eight years in the state penitentiary.
Considered first is the contention of defendant Williams that he was denied procedural due process of law when the trial court sentenced him for violation of probation without allowing him to present evidence in his behalf. On this point the record shows the following:
THE COURT: "Five to eight years is the sentence."
DEFENSE COUNSEL: "Judge, we respectfully request, we haven't had a chance at this point to present any mitigation on behalf of the defendant. We initially came up to Your Honor on motion for continuance to get the information."
THE COURT: "Counsel, you are aware of the fact the law provides that a conviction subsequent to a probation order is sufficient to revoke his probation."
DEFENSE COUNSEL: "Your Honor, we also feel "
THE COURT: "Especially a conviction involving the same kind of conduct for which he was originally sentenced."
DEFENSE COUNSEL: "We feel, Your Honor, that we still should have an opportunity to present some type of mitigation on behalf of the defendant before Your Honor sentences the man."
Defendant Williams charges that "the so-called hearing which was conducted was in reality not a hearing at all. Procedural due process requires that any defendant be given an opportunity to present evidence in his own behalf and rebut the prosecution's evidence. Although the defendant, through his attorney, represented to the court that he was not prepared to proceed and had not had an opportunity to gather evidence favorable for the defendant, the trial court denied this request and summarily revoked the defendant's probation. The defendant was stripped of all his rights and privileges and denied the opportunity to defend himself." In support of his contention defendant cites Ill Rev Stats, c 38, § 117-3(b), which states:
"When a warrant is issued, the court shall within a reasonable time after the apprehension of the probationer conduct a hearing on the issue of the probation violation. The probationer may be admitted to bail pending the hearing. At the ...