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People v. Whitt

JANUARY 30, 1974.

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

v.

JUNIUS WHITT, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Peoria County; the Hon. CHARLES M. WILSON, Judge, presiding.

MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

On May 17, 1971, the defendant Junius Whitt was placed on two years probation by the Circuit Court of Peoria County, after pleading guilty to the offense of criminal damage to property. The terms of the defendant's probation were that he was to report once a month to the adult probation officer until his probationary period was terminated; that he was to pay the costs of the proceedings had against him; that he was to make restitution in the amount of $509.66 and that he was to abide by the mandatory conditions of probation prescribed by statute and also to conditions of probation previously authorized by the Circuit Court of Peoria County and which were to apply in all probation cases.

On September 24, 1971, the defendant was again placed on probation for driving a motor vehicle with a revoked license. His term of probation for this offense was six months and he was ordered to pay a fine and court costs totaling $160.00.

On June 2, 1972, the adult probation officer of Peoria County reported that the defendant had violated his terms of probation which had been established when he was found guilty of the offense of criminal damage to property. The violations asserted by the probation officer were the driving conviction, refusal to report to the probation office as directed, failure to satisfy the fine imposed in both of his convictions and failure of the defendant to report to the Zeller Zone Center on March 13, 1972, for an examination.

The trial court appointed the public defender to represent the defendant in the revocation hearing and further granted his motion for a change of judges for the hearing.

On June 19, 1972, a hearing was had upon the request for revocation of the defendant's probation. After evidence was presented the State moved to dismiss certain allegations of probation violations contained in the request for revocation. This motion was granted leaving as alleged violations only the defendant's conviction for driving with a revoked license and his refusal to report to the probation officer on a monthly basis as required by the conditions of his probation. The trial court made a finding that the report of violation of probation was correct as to the remaining two alleged violations and revoked the defendant's probation.

It should be noted that the record discloses that during the hearing the defendant testified in his own behalf and admitted that he did not report to the probation officer once a month and that he had in fact pled guilty to the offense of driving with a revoked license and was placed on probation for this offense.

It further appears in the record that during a hearing in aggravation and mitigation the defendant's attorney made the following statement:

"That the defendant appears to have violated the condition of his probation by driving on a revoked license and perhaps by failure to make the reports, although the evidence is not completely clear that he was so advised to make monthly reports."

At the conclusion of the hearing in aggravation and mitigation the defendant was sentenced to a term of not less than three nor more than five years in the penitentiary.

• 1 The first issue raised by the defendant in this appeal is that the State failed to provide sufficient proof that the defendant violated his probation. In considering this issue we first recognize that if a defendant after proper hearing is found to have violated any term of his probation, the same may be revoked and he can be resentenced. (See Ill. Rev. Stat., ch. 38, sec. 1005-6-4.) Further it is now well settled that while the State has the burden of proving the violation, this proof need not conform to the reasonable doubt standard, but proof by mere preponderance of the evidence is sufficient. In the case of People v. Crowell, 53 Ill.2d 447, 451, 292 N.E.2d 721, 723 our Supreme Court recently stated:

"Since this court has never before ruled on the precise question of what the quantum of proof should be in a probation revocation proceeding, and in the absence of statutory provision therefor (Ill. Rev. Stat. 1971, ch. 38, par. 117-1 et seq.), we hold that a violation of the conditions of probation must be proved by a preponderance of the evidence.

We note, moreover, that the General Assembly has specifically incorporated this standard in the new Illinois Code of Corrections (Ill. Rev. Stat. 1971, ch. 38, par. 1005-6-4(c); P.A. 77-2097), effective January 1, 1973."

Since this clear pronouncement of our Supreme Court has settled the question as to the quantum of proof required in probation revocation hearings, then we must determine if such alleged violation was ...


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