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People v. Willett

OPINION FILED DECEMBER 21, 1976.

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

v.

TIMOTHY WAYNE WILLETT, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Franklin County; the Hon. F.P. HANAGAN, Judge, presiding.

MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:

Defendant, Timothy W. Willett, appeals from an order of the Circuit Court of Franklin County revoking his probation and sentencing him to a term of two to six years in the penitentiary.

Defendant was convicted of two counts of burglary and sentenced to two years probation. For the first years of the probationary period, beginning in November of 1974, he was required to serve the first and third weekends of every month in the county jail. The State later filed a petition to revoke defendant's probation, alleging that he had failed to serve any time in jail during the months of April, May, June and July of 1975. After a revocation hearing, the circuit court granted the State's petition. A second hearing was held, after which the court imposed the aforementioned sentence.

• 1 Defendant's notice of appeal was filed on October 24, 1975, five days before the written order revoking probation and imposing sentence. The State contends that the cause must, therefore, be dismissed for want of jurisdiction. (Ill. Rev. Stat. 1975, ch. 110A, par. 606(b); People v. Boston, 27 Ill. App.3d 246, 327 N.E.2d 40 (5th Dist. 1975).) We do not agree. As soon as the trial court's judgment is clearly indicated in the written record it becomes a final appealable order. (People v. Krug, 38 Ill. App.3d 383, 347 N.E.2d 807 (5th Dist. 1976).) In the instant case, the trial judge's record sheet contains dated entries stating that defendant's probation was revoked and that he was sentenced to a term of two to six years. Because these entries were made prior to the filing of defendant's notice of appeal, we have jurisdiction to consider the case on its merits.

The State has filed a motion, which we ordered taken with the case, to strike the defendant's brief. The brief is riddled with assertions unsupported by the record, pejorative characterizations, and other violations of Supreme Court Rule 341. (Ill. Rev. Stat. 1975, ch. 110A, par. 341.) The first sentence of defendant's argument is representative of the tone and content of the entire brief:

"When the defendant first appeared in Court, it was involuntarily, he being already in the custody of a fellow Shakespeare would probably have called old `Bottom' the weaver, but who we all know as the Sheriff from down there at the County Slammer."

We would be perfectly justified in striking defendant's brief (see Biggs v. Cummins, 16 Ill.2d 424, 158 N.E.2d 58 (1959)), but, as Shakespeare would probably have said, "The quality of mercy is not strain'd * * *." (W. Shakespeare, The Merchant of Venice IV:i:184.) The State's motion is denied.

Many of the "arguments" presented in defendant's brief are simply unintelligible. For instance, defendant contends:

"Of course, States Attorneys don't see any problem for their County's bonded Sheriff or other clients, because, after all, the Circuit Courts are all courts of general jurisdiction and it all goes under the Chapter 75 I.R.S. Sec. 28 rug anyway. Oh yeah? People v. Byrnes, 34 Ill. App.3d 983, 341 N.E.2d 729."

An imaginative reading of defendant's brief, however, indicates that he is raising the following issues for review: (1) whether it was improper to commence the original burglary prosecution against defendant with a complaint prepared by an assistant chief of police; (2) whether defendant was denied his constitutional right to a prompt preliminary hearing; (3) whether the amount of bail set prior to defendant's trial for burglary was excessive; (4) whether sufficient proof was presented that defendant violated the terms of his probation; and (5) whether the sentence of two to six years was arbitrary and excessive.

• 2 The first three issues raised by defendant involve the validity of his original conviction for burglary. That conviction was a final judgment from which defendant could have appealed within the time limits imposed by Supreme Court Rule 606(b). (Ill. Rev. Stat. 1975, ch. 110A, par. 606(b); People v. Nordstrom, 37 Ill.2d 270, 226 N.E.2d 19 (1967).) Defendant could have brought an immediate appeal under Rule 604(c) from an order denying a reduction of bail. (Ill. Rev. Stat. 1975, ch. 110A, par. 604(c).) The law is well settled, however, that a defendant may not attack the validity of his original conviction on appeal from a judgment revoking probation. (People v. Nordstrom, 37 Ill.2d 270, 226 N.E.2d 19 (1966); People v. Lambert, 23 Ill. App.3d 615, 320 N.E.2d 395 (3d Dist. 1974); People v. Gregory, 16 Ill. App.3d 204, 305 N.E.2d 549 (4th Dist. 1973); People v. Floyd, 14 Ill. App.3d 1009, 303 N.E.2d 826 (1st Dist. 1973).) Defendant implies in his brief that he was required to waive his right to appeal in order to be placed on probation. We note that there was some discussion of defendant's right to appeal at the sentencing hearing and that a defendant should not be coerced into waiving an appeal by accepting probation. (See People v. Nordstrom, 73 Ill. App.2d 168, 174, 219 N.E.2d 151, 155, aff'd, 37 Ill.2d 270, 226 N.E.2d 19 (1967); State v. Rhinehart, 267 N.C. 470, 148 S.E.2d 651 (1966).) Nevertheless, we feel that if defendant wishes to pursue this argument, as well as the arguments concerning the validity of the conviction itself, he must do so by filing a petition either for habeas corpus or for post-conviction relief under section 122-1 of the Code of Criminal Procedure. Ill. Rev. Stat. 1975, ch. 38, par. 122-1 et seq.

Defendant also contends that the State failed to prove that he violated probation. As already noted, the State's petition to revoke charged that during the months of April, May, June and July, defendant did not serve his required time in the county jail. In support of its contention, the State introduced defendant's "rap sheet" at the probation revocation hearing. The rap sheet, which purportedly contains a complete record of the time defendant served, indicates that he complied with his probation order fairly regularly from November of 1974 through April of 1975. After that period, however, defendant served only the third weekend in May and did not report again until September 2, 1975, over a month after he was served with the State's petition to revoke probation. Defendant does not contest the accuracy or admissibility of the rap sheet, but argues that he was excused from complying with the probation order on the weekends he was absent.

The defendant testified at the revocation hearing that his mother called the probation officer, presumably some time in April, and obtained permission for the defendant to travel to the State of Michigan to seek work. He said that his original plan was to leave on May 1, and that he, therefore, did not report to the county jail on the first weekend of that month. Defendant stated that because the trip to Michigan was delayed, he ended up serving the third weekend of May in the county jail as required. According to the defendant, he and his father departed for Michigan shortly thereafter, and returned home at the end of June.

Defendant also admitted that he did not serve any time in July. He explained, however, that on the first weekend of that month he was given permission to visit his grandmother in Mt. Vernon, Illinois, and that on the third weekend he received permission from someone in the probation office to go on an outing with a church organization. Defendant said that when he subsequently reported to the jail on July 29 to make up for some of the time ...


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