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People v. Winston

APRIL 4, 1972.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

RICHARD W. WINSTON, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Carroll County; the Hon. JAMES E. BALES, Judge, presiding.

MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:

The defendant herein plead guilty to the charge of burglary and was granted probation for a period of two and one-half years, the first year to be spent in the county jail. While in the county jail he was granted a furlough on June 5, 1970, to attend his brother's high school graduation. As a matter of interest his brother was the valedictorian of his class. The defendant never got to the graduation. Some time during the day in question he became intoxicated and was returned to the county jail by the sheriff who found him lying unconscious on his father's front porch. A petition to revoke his probation was filed and after a rather lengthy hearing the probation was revoked and he was sentenced to 3-5 years in the Illinois State Penitentiary.

• 1 The defendant contends that he was not afforded a hearing in aggravation and mitigation pursuant to the provisions of ch. 38, par. 1-7(g), Ill. Rev. Stat. 1967, and further, that his sentence should be reduced.

In People v. Dotson (1969), 111 Ill. App.2d 306, 250 N.E.2d 174 it was held

"* * * a hearing in aggravation and mitigation is required before sentence is imposed as a result of revocation of probation * * *."

In People v. Nelson (1968), 41 Ill.2d 364 at 367, 243 N.E.2d 225 the Supreme Court said:

"The burden of presenting mitigating circumstances in a record falls upon a defendant and it is he who must make a substantial showing in order to justify a reduction of sentence on review. We have held that it is incumbent on the defendant to request hearing, and failure to do so constitutes a waiver." People v. Muniz, 31 Ill.2d 130, 138.

In People v. Fuca (1969), 43 Ill.2d 182, 251 N.E.2d 239 at 241 the Supreme Court in citing Nelson with approval, stated

"From a review of the record in this case it appears that the defendant requested no further hearing other than that afforded by his probation hearing, and therefore it is our opinion that he has waived his right to present any mitigating evidence which was available to him upon a hearing in aggravation and mitigation."

Examination of the record here discloses that the trial judge did in fact conduct a complete hearing on the relevant circumstances, both of defendant's conviction, his background and the details of the incident resulting in the revocation of his probation. Defendant was represented by counsel. At three separate occasions the judge inquired of the defendant whether he had anything he might want to tell the court, viz.:

"Is there anything further you want to tell me?

Is there anything more you want to say to me?

You have a perfect right to say it."

And the defendant replied that he did not. Contrary to defendant's contention here, we do not feel that the trial judge was "acting as a prosecutor." The hearing would indicate a genuine interest on the part of the trial judge as to the defendant's background and the ...


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