APPEAL from the Circuit Court of Macon County; the Hon. RODNEY
A. SCOTT, Judge, presiding.
MR. JUSTICE REARDON DELIVERED THE OPINION OF THE COURT:
The defendant, Sylvester Huff, was charged with two separate offenses of burglary, alleged to be in violation of section 19-1 of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, par. 19-1). The defendant pleaded guilty to each and on February 27, 1975, was sentenced to two years' probation.
In accordance to section 5-6-4(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005-6-4(a) a petition charging defendant with a violation of probation was filed on April 14, 1975, which alleged that defendant, while on probation, had committed burglary and felony theft. A hearing was held on this report on May 15, 1975. The evidence at that hearing revealed that the Tucumcary Fashion Shop in Decatur, Illinois, had been burglarized on the evening of March 25, 1975. Among the items taken were several pairs of pants of a distinctive brand sold only by the Fashion Shop. Detective James Dellert of the Decatur Police Department testified that he had searched the defendant's residence and found a number of boxed pairs of pants in defendant's room. These pants were identified as being similar to the ones taken in the burglary of the Fashion Shop. Defendant disclaimed participation in the burglary and claimed that he had purchased the pants from one Winnie Smith and from another store in Decatur, Illinois, known as Susler's Men's Shop. Sewell Susler, the owner of Susler's Men's Shop testified that his store did not carry any of the brands of pants found in defendant's room and denied that the defendant had purchased the pants from him. The trial court determined that defendant had violated the terms of his probation and revoked his probation. Defendant was sentenced to two concurrent indeterminate imprisonment terms with minimums fixed at 5 years and the maximums fixed at 15 years.
Defendant maintains that he was denied equal protection of the law because he did not receive a trial on the criminal charges arising out of the burglary of the Fashion Shop before he was required to face the alleged probation revocation violations arising out of the same conduct. In support of this position, defendant relies upon People v. Grayson (1974), 58 Ill.2d 260, 319 N.E.2d 43, which held that the doctrine of collateral estoppel will apply to preclude relitigating in a probation revocation hearing an issue which has already been resolved in a criminal trial for the same offense and based upon substantially the same evidence. Under the Grayson rationale, if the defendant had been tried for the alleged burglary and theft of the Fashion Shop and acquitted, the State would have been estopped from relitigating the same issues by petitioning to revoke his sentence of probation. The defendant's position is premised on the concept that when a defendant is tried for a criminal offense, he must be proved guilty by an amount of proof known as proof beyond a reasonable doubt. (Section 3-1 of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, par. 3-1).) He argues that this safeguard is not available to probationers in defendant's situation where the probation revocation is held first since the amount of proof required at such a hearing is an amount of proof known as "preponderance of the evidence." Section 5-6-4(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005-6-4(c)).
Confusion had existed for many years as to what standard of proof was required for a probation revocation proceeding. (Ill. Jud. Conf. 1960 Ann. Report 59-63.) Prior to 1961, the statutory provisions for probation revocation standard of proof was unclear. For example, section 6 of the Criminal Code of 1959 (Ill. Rev. Stat. 1959, ch. 38, par. 789) provided in pertinent part:
"At any time during the period of probation, the court may, upon report by a probation officer or other satisfactory proof of the violation by the probationer of any of the conditions of his probation, revoke and terminate the same." (Ill. Rev. Stat. 1959, ch. 38, par. 789.)
This statute further imposes a burden on defendant:
"* * * to show cause why his probation should not be terminated and judgment entered, and sentence imposed upon the original conviction." (Ill. Rev. Stat. 1959, ch. 38, par. 789.)
The Illinois courts construed this provision so as to require proof of probation violation by a preponderance of the evidence. For example, People v. Burrell (1948), 334 Ill. App. 253, 79 N.E.2d 88, held that the State is not required to prove a probation violation beyond a reasonable doubt but must produce convincing proof of probationer's guilt of the act for which his probation is revoked. People v. Koning (1958), 18 Ill. App.2d 119, 151 N.E.2d 103, is to the same effect. In the landmark case of People v. Price (1960), 24 Ill. App.2d 364, 164 N.E.2d 528, it was held that the State was required to prove by a preponderance of evidence that had violated his probation order. In 1961 the "preponderance of the evidence" standard of proof was statutorily mandated by the enactment of section 6.1 of the Code of Criminal Procedure of 1961, which provided in part:
"At the conclusion of the hearing, when the court determines from a preponderance of the evidence that probation has been violated, the court may revoke probation and impose sentence." (Ill. Rev. Stat. 1961, ch. 38, par. 789.1)
This provision was carried forward in the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1963, ch. 38, par. 789.1). The Code of Criminal Procedure of 1965 did not specifically mention the "preponderance of the evidence" standard for probation revocation but merely stated in part:
"(d) If the court determines that a condition of probation has been violated, * * *." (Ill. Rev. Stat. 1965, ch. 38, par. 117-3.)
This language was maintained in the Codes of Criminal Procedure of 1967, 1969, and 1971. (Ill. Rev. Stat. 1967, 1969, 1971, ch. 38, par. 117-3.) This provision was construed by the courts as mandating the preponderance of the evidence standard of proof in probation revocation hearings. (People v. Crowell (1973), 53 Ill.2d 447, 292 N.E.2d 721; People v. Dotson (1969), 111 Ill. App.2d 306, 250 N.E.2d 174; People v. White (1968), 98 Ill. App.2d 1, 239 N.E.2d 854.) In 1973 the Code of Criminal Procedure was amended to provide, in section 5-6-4(c), in pertinent part:
"(c) The State has the burden of going forward with the evidence and proving the violation by the preponderance of the evidence." (Ill. Rev. ...