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People v. O'meara

NOVEMBER 8, 1974.

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

v.

DONALD JOSEPH O'MEARA, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Lake County; the Hon. HARRY D. STROUSE, JR., and the Hon. JAMES H. COONEY, Judges, presiding.

MR. JUSTICE CALVIN DELIVERED THE OPINION OF THE COURT:

Mr. JUSTICE CALVIN delivered the opinion of the court:

The defendant appeals from a revocation of his probation and from a denial of his petition for writ of habeas corpus. The appeals were consolidated in this court.

Originally, the defendant was charged in Lake County with armed robbery. On February 24, 1967, he pleaded guilty to the lesser included offense of robbery and on March 8, 1967, he was granted probation for a term of 5 years.

On October 13, 1967, a petition to revoke his probation was filed alleging that the defendant violated probation by committing armed robbery August 29, 1967, in Cook County, Illinois, where he was then in custody. Shortly thereafter, defendant was released to Federal authorities to stand trial on unrelated charges and, as a result thereof, received a 10-year sentence and was committed to the Federal penitentiary at Leavenworth on November 14, 1967. No detainer was filed by Lake County authorities while defendant was in Federal custody.

On December 21, 1970, defendant was paroled from the Federal penitentiary and returned to reside in Zion, Illinois. The facts are uncontroverted that the defendant saw both the probation officer and State's Attorney of Lake County on different occasions and that neither mentioned that the 1967 petition to revoke was still outstanding. The probation officer, in fact, informed him it had been dropped.

On August 30, 1971, defendant was brought before the trial court pursuant to the 1967 petition to revoke. Defendant moved the court to strike and dismiss the petition on the grounds he had been denied his Sixth Amendment right to speedy trial thereon. That motion was denied, and on September 29, 1971, defendant's counsel and the assistant State's Attorney indicated to the court that, after a discussion, they desired to present to the court a disposition in the nature of a negotiated plea which would, in effect, find defendant in contempt of court and extend his probation. The court did not act on the request at that time because there could have been Federal parole problems then in existence.

At a later hearing on November 10, 1971, after determining no Federal parole problem existed, the trial court extended probation for an additional 2 years beyond the original term, the order specifying the extension to be to March 8, 1974. The trial judge then admonished the defendant that he had a right to appeal the order within 30 days and to counsel and a transcript on appeal. The defendant acknowledged this admonition in open court. No appeal was filed.

On April 3, 1972, a second petition to revoke probation was filed alleging defendant violated his probation by committing the offense of theft over $150 on April 2, 1972. The defendant pro se moved to strike and dismiss the petition alleging the hearing on the original petition to revoke had been held in violation of his right to speedy trial. This motion was later denied, and defendant, on June 21, 1972, filed a pro se petition for writ of habeas corpus again alleging violation of his right to speedy trial on the original petition to revoke probation. This petition was heard by a judge other than the original trial judge and was denied July 18, 1972, on which date defendant filed notice of appeal from that denial.

On August 9, 1972, the trial judge who originally granted probation and the extension thereof, acting on the second petition to revoke, did revoke the defendant's probation and sentenced him to a term of 3-10 years in the penitentiary with credit for 323 days previously served in the Lake County Jail. A notice of appeal from this order was filed. The appeals were consolidated for hearing in this court.

Defendant contends in both appeals that the trial court lost jurisdiction to conduct a hearing on the original petition for revocation of probation due to State-occasioned unreasonable delay in the hearing thereon and that by reason thereof, there was no valid extension of probation, and thus, probation had terminated on March 8, 1972, prior to the alleged second violation on April 2, 1972. We find that this argument has been waived.

Certainly, the trial court in 1967 had authority to grant probation for 5 years. (Ill. Rev. Stat. 1965, ch. 38, par. 117-1(b).) This original term would have expired March 8, 1972.

The service of the Federal sentence did not terminate defendant's State probation, and it was still in effect on November 10, 1971, when the trial court extended probation for an additional 2 years, that order specifying the termination date to be March 8, 1974. A person admitted to probation shall remain subject to the jurisdiction of the court. Ill. Rev. Stat. 1965, ch. 38, par. 117-1(c).

Section 117-1(b), in force in 1971 at the time of the hearing on the original petition to revoke probation, gave the court authority to extend probation for a period of not more than an additional 2 years for good cause shown. There was no contention by the defendant that good cause was not shown. His motion to strike and dismiss the petition to revoke was based on the grounds that the delay of almost 4 years in prosecuting the petition denied him his constitutional right to a speedy trial. This motion was denied by the trial court, and the defendant's probation was extended 2 years beyond the original term to March 8, 1974. Clearly, the court had both jurisdiction and authority to do so. The defendant, in his pro se brief, further contends that the order extending probation was void because it purported to grant probation for 7 years from the original date of March 8, 1967, and that this exceeded the court's authority. We are not ...


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