APPEAL from the Circuit Court of Cook County; the Hon. JAMES
M. BAILEY, Judge, presiding.
Mr. PRESIDING JUSTICE DOWNING delivered the opinion of the court:
On December 17, 1970, the defendant, Larry McCoy, pleaded guilty to robbery and was placed on 5 years' probation on the condition that he serve the first year in the Cook County Jail. On July 2, 1973, following a hearing, the defendant's probation was revoked and he was sentenced to not less than 5 nor more than 15 years in the Illinois State Penitentiary. (Ill. Rev. Stat. 1969, ch. 38, par. 18-1.) On appeal, he contends that the sentence was excessive and that the trial court should have initiated proceedings under the Dangerous Drug Abuse Act. Ill. Rev. Stat. 1973, ch. 91 1/2, par. 120.1, et seq.
On December 17, 1970, when the defendant's plea of guilty to robbery was accepted, the court specifically admonished the defendant that if there was a violation of probation, he would sentence the defendant to "from ten to twenty" years in the penitentiary. A warrant for violation of probation was issued on July 6, 1972, based upon the report of the probation officer that the defendant had never reported to his probation officer as required by the conditions of probation and that he was scheduled to appear in court on August 7, 1972, to answer charges of theft and resisting arrest. At the hearing on July 2, 1973, defendant, through his counsel, stipulated that on April 4, 1973, he had been convicted of theft and sentenced to 10 days in the House of Correction, and that since January of 1973 he had failed to report to the probation officer. The issue at the probation revocation hearing, therefore, was not whether the defendant had violated the terms of his probation, but whether the court should reinstate the defendant's probation. In support of his position, defendant's counsel stated that the defendant was "a drug addict." At the beginning of the hearing defense counsel stated that a representative of the Day One Illinois Drug Abuse Program was present in court and the case was passed so that the counselor could talk to the defendant. When proceedings were resumed, defendant's counsel asked the court to place the defendant "with strict control in Tinley Park, another part of the Illinois Drug Abuse Program." Defendant also addressed the court and asked if the judge "would probate" him "to Tinley Park." The counselor also addressed the court in an attempt to explain the program.
The State's attorney indicated that the defendant had never reported to his probation officer, and that his prior record consisted of the following: 1969, resisting a peace officer, fined $60; August 26, 1969, indecent liberties, sentence of 6 months to Vandalia; December 3, 1969, theft, 1 year probation; December 17, 1970, robbery, 5 years' probation, first year in the Cook County Jail; August 28, 1971, Detroit, Michigan, possession of dangerous drugs, 1 year probation, fine of $175; March 7, 1972, theft, 30 days in the House of Correction. The defendant, however, contested the second item, saying he was never sentenced and did not serve 6 months in Vandalia.
The court, after reading at length from the transcript of the December 17, 1970 hearing at which he had promised to sentence the defendant to 10 to 20 years, sentenced him to 5 to 15 years in the Illinois State Penitentiary. In response to the pleas of the defendant, his counsel, and the counselor, that the defendant be placed on the drug treatment program, the court said: "They have a program in the penitentiary just for the type of programs you are talking about."
This case involves interpretation of the following language of section 10 of the Dangerous Drug Abuse Act (Ill. Rev. Stat. 1973, ch. 91 1/2, par. 120.10):
"If a court has reason to believe that an individual convicted of a crime is an addict or the individual states that he is an addict and the court finds that he is eligible to make the election provided for under Section 8, the court may advise him that he may be placed on probation if he elects to submit to treatment and is accepted for treatment by the Department. In offering an individual an election, the court shall advise him that (a) if he elects to submit to treatment and is accepted he may be placed on probation and under the supervision of the Department for a period not to exceed the maximum sentence that could be imposed for his conviction or 5 years, whichever is less; (b) during probation he may be confined in an institution or, at the discretion of the Department, he may be released for supervised aftercare treatment in the community; and (c) if he adheres to the treatment program and fulfills the other conditions of probation, he will be discharged, but any failure to adhere to the treatment program is a breach of probation. The court may certify an individual for treatment while on probation under the treatment supervision of the Department and probation supervision of the proper probation authorities regardless of the election of the individual.
If the individual elects to undergo treatment or is certified for treatment, the court shall order an examination by the Department to determine whether he is an addict and is likely to be rehabilitated through treatment." (Emphasies added.)
The statute clearly states that the psychiatric examination by the Department of Mental Health is mandatory once either of two events occur: either the defendant makes an election under the Act or the court certifies him for treatment. Although the defendant in the case at bar did not file a written petition asking that the procedures under the Act be initiated, and although the statute was not referred to specifically in the trial court, we think a strong argument can be advanced that the defendant did attempt to exercise an election within the meaning of the Act.
In People v. White (1973), 10 Ill. App.3d 566, 294 N.E.2d 699 (abstract opinion), we held that a psychiatric examination was mandatory if the defendant elected to be treated under the Act, but in White the only factual basis for the defendant's contention that he elected treatment was the following brief exchange during the hearing in mitigation:
"DEFENSE COUNSEL: Do you want to get on a program?
Although recognizing that there were circumstances that might require the court on its own motion to initiate the Act's procedure, we there stated in concluding that this exchange did not ...