APPEAL from the Circuit Court of Cook County; the Hon. JAMES
M. BAILEY, Judge, presiding.
MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
On April 15, 1974, acting upon the briefs of the parties and on oral argument, this court filed an opinion. In due course a petition for rehearing was filed in behalf of defendant. With leave of court this petition was supplemented by filing additional material. This court then requested that an answer to the petition for rehearing be filed by the State. (Supreme Court Rule 367(d), 50 Ill.2d R. 367(d).) An answer to the petition was then filed. A reply to the State's answer was filed by counsel for defendant. After careful study of all of these additional matters, we have decided to and we do file the following opinion in lieu of the one originally filed herein.
Donald Dandridge (defendant) pleaded guilty to burglary. (Ill. Rev. Stat. 1971, ch. 38, par. 19-1.) On January 25, 1971, he was sentenced to 5 years' probation, the first 6 months to be served in the county jail. On September 6, 1972, the State filed a petition for a rule to show cause why probation should not be revoked alleging that defendant had been indicted for unlawful use of a weapon. The additional charge that defendant had violated his probation by failing to report to his probation officer was added later. On October 2, 1972, defendant's probation was revoked and he was sentenced to 3 to 9 years in the penitentiary. He appeals.
At the commencement of the revocation hearing, defendant requested a continuance because he had spoken to a private attorney and wanted to hire him. After passing the case, the judge proceeded with a hearing on the revocation of probation, but not to trial on the substantive offense concerning use of weapons.
At the hearing, an officer of the probation department testified that defendant was admitted to probation on January 25, 1971, and was instructed that he was to report once a month after his release from jail. He further stated that defendant never reported and that a "home visit" was attempted on July 12, 1971, but that defendant could not be found. An objection to this testimony by defense counsel was overruled.
Concerning commission of the substantive offense, two police officers testified that they saw defendant grab his leg as he was alighting from his car and they noticed a gun fall from his pant leg and onto the street near the driver's side of the car. Defendant kicked the gun partially under the car. They placed defendant under arrest and took him to the police car where he told them his name was Joseph Eastline. The officers then recovered the gun, a loaded .22 derringer. Both officers testified that there was at least one other person in the car.
Defendant testified that he had reported to a probation officer named Albert Chesser for his first interview, but was not told to report every month. He testified that he had reported to Mr. Chesser on approximately three subsequent occasions, but did not have him sign his card because it was in his wallet at home. On cross-examination, however, he admitted signing the statement on his probation card that he had "read the foregoing" and fully understood "the rules and regulations" of probation. A member of the probation department had previously testified that this card advised the probationer of the rules of probation, including the days when he was required to report. The defendant stated that he had signed a lot of things at the initial interview and didn't really know what they were.
As to the weapon charge, defendant testified that he had come out of "a lounge" and picked up two friends. When he noticed that they were carrying some "contraband", which he guessed was heroin, he pulled over to the curb. The police officers then approached and took him to the police car. He testified that they called him "Joseph Eastline," although he denied that was his name and told them his correct identity and showed them his driver's license. One of his passengers ran from the scene and the other was taken into custody. He also testified that one of the officers went back to the car and returned with a gun which he stated he had found on "the passenger's side of the car, right up under the clutch." Defendant also testified that he had never seen the gun before.
Mr. Albert Chesser, apparently never sworn to testify, appeared and stated in open court that he only handled drug program petitions, and was not a regular probation officer. He remembered defendant vaguely and he may have handled his petition and the arrangements for him to enter the Illinois drug abuse program, but he was not the regular probation officer to whom defendant was to report monthly.
Defendant urges here that the trial court abused its discretion in refusing his request for a continuance so that he could employ private counsel; the State failed to introduce any competent evidence that defendant was in violation of a condition of his probation; the trial judge abused his discretion in finding by a preponderance of the evidence that the defendant did commit the crime of unlawful use of weapons; and, finally, the time defendant spent on probation should be credited against his sentence.
We find no merit in defendant's first contention that the court abused its discretion in denying him a continuance. Defendant himself asked the court to grant him a continuance because he had talked to and would have liked to hire a private attorney. The judge passed the case to consider the proper action to be taken. When the proceedings reconvened, the following colloquy took place:
"The Court: We are not proceeding on the case. We are proceeding on the violation of probation. It has been brought to my attention you did answer ready when the officer was here. You want to hire an attorney for the other case, is that correct, Mr. Kunkle? You are ready?
Mr. Kunkle: In a legal sense, naturally if my client doesn't want to proceed, I'd ask for the continuance that he is asking for.
The Court: Ready? The officer here? At this time we are going to go to trial as far as the hearing on the revocation of probation and ...