APPEAL from the Circuit Court of Tazewell County; the Hon.
CALVIN R. STONE, Judge, presiding.
MR. JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:
Defendant was originally charged and convicted of burglary, and on June 23, 1971, was granted probation for 5 years, on condition that he would not violate any penal statute or ordinance of any jurisdiction.
On August 31, 1973, a petition to revoke probation was filed charging that Hunt had, on May 27, 1973, violated a condition of his probation by committing the offenses of burglary and theft. Hunt was subsequently arrested on September 5, 1973, bail was set at $5,000 and the matter continued to September 10, 1973, for arraignment. The public defender was appointed because of defendant's indigency, and the matter continued to September 14, 1973, at which time defendant was arraigned and entered a plea of not guilty, after being furnished a copy of the charges contained in the petition. Both the defendant and his attorney agreed that the revocation hearing would be heard on September 27, 1973. On that date counsel for defendant appeared but the defendant did not appear. Hunt's bail bond was thereafter ordered forfeited, and an amended petition to revoke probation, charging the additional violation of bail bond, was filed. Hunt was subsequently apprehended on February 7, 1974, was arraigned, and remanded in custody.
Hunt's probation revocation hearing was held on March 4, 1974, and concluded on March 7, 1974, with the court finding that a preponderance of the evidence supported the charges that defendant had committed the theft and violation of bail bond. Following presentence report and sentencing hearing, Hunt was sentenced to a term of from 5 to 15 years.
The only issue to be decided on appeal is whether or not the trial court's failure to hold a preliminary hearing after defendant was arrested for violating his probation is reversible error.
Defendant contends that the failure to hold a preliminary hearing denied him due process, and cites two recent United States Supreme Court decisions. In Gagnon v. Scarpelli, 411 U.S. 778, 782, 36 L.Ed.2d 656, 661, 662, 93 S.Ct. 1756 (1973), the court said:
"Probation revocation, like parole revocation, is not a stage of a criminal prosecution, but does result in a loss of liberty. Accordingly, we hold that a probationer, like a parolee, is entitled to a preliminary and a final revocation hearing, under the conditions specified in Morrissey v. Brewer, 408 U.S. 471, 33 L.Ed.2d 484, 92 S.Ct. 2593 (1972)."
Gagnon was decided on May 14, 1973, and the revocation hearing in the instant case was held almost a year later. In Gagnon it was held that a defendant is entitled to due process of law in proceedings to revoke probation. It has been recognized that the concept of due process is flexible, but "To say that the concept of due process is flexible does not mean that judges are at large to apply it to any and all relationships. Its flexibility is in its scope once it has been determined that some process is due; it is a recognition that not all situations calling for procedural safeguards call for the same kind of procedure." Morrissey v. Brewer, 408 U.S. 471, 481, 33 L.Ed.2d 484, 494, 92 S.Ct. 2593, 2600.
To understand the Gagnon rule, it is necessary to look at the facts which led up to the United States Supreme Court decision. Gerald Scarpelli had pled guilty in July, 1965, to a charge of armed robbery in Wisconsin. The trial judge sentenced him to 15 years' imprisonment, but suspended the sentence and placed him on probation for 7 years in the custody of the Wisconsin Department of Public Welfare. At that time, Scarpelli signed an agreement, specifying the terms of his probation and a "Travel Permit and Agreement to Return" allowing him to reside under supervision in Illinois pursuant to an interstate compact. On August 5, 1965, he was accepted for supervision by the Adult Probation Department of Cook County, Illinois; on August 6, 1965, he was apprehended with another in the course of the burglary of a house. Scarpelli was apprised of his constitutional rights, and admitted the crime but later asserted that his statement was made under duress and was false. On September 1, 1965, Scarpelli's probation was revoked by the Wisconsin Department of Public Welfare without a hearing, and on September 4, he was incarcerated in the Wisconsin State Reformatory to begin serving the 15-year sentence previously suspended. At no time was Scarpelli given a hearing or access to counsel.
Three years later, on December 16, 1968, Scarpelli applied to the Federal District Court for a writ of habeas corpus, and it was held that revocation without a hearing and counsel was a denial of due process. (317 F. Supp. 72 (E.D. Wis. 1970).) The court of appeals affirmed (454 F.2d 416 (7th Cir. 1971)), and the United States Supreme Court granted certiorari.
In reaching its decision, the supreme court analyzed the decision in Morrissey, decided in 1972, which dealt solely with the constitutional requirements of parole revocation procedures. Morrissey stated that, with respect to the preliminary hearing, the parolee is to be given notice that the hearing will take place and that its purpose is to determine whether there is probable cause to believe he has committed a parole violation. The notice also must specify the alleged violations. At the hearing the parolee must be given an opportunity to appear and speak with the right to confront and examine persons who have given adverse information.
1 The preliminary hearing prescribed in Morrissey will hereafter be called a prerevocation hearing, to distinguish it from the usual preliminary hearing in a criminal proceeding in Illinois. We believe it important to note that a prerevocation hearing is distinguishable in principle from the usual preliminary hearing because the existence of probable cause is not necessary to establish jurisdiction over the probationer, since the court has a continuing jurisdiction over those granted probation until the probation term has been completed.
We are, of course, bound by the requirements imposed by the supreme court in Morrissey and Gagnon to the extent that they establish minimal due process requirements in parole revocation proceedings. Although we are not confronted with a revocation of parole but rather with proceedings for the revocation of probation granted after conviction, such proceedings are subject to the same guarantees of due process.
The case before us differs factually from Gagnon in that the defendant here received a fair hearing, with appointed counsel, before a judge who revoked the ...