APPEAL from the Circuit Court of Cook County; the Hon. MARVIN
E. ASPEN, Judge, presiding.
MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:
Defendants Jackie Ruffin and Bruce Winters were indicted for the offense of theft from the person, a Class 3 felony, in violation of section 16-1(a)(1) of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, par. 16-1(a)(1)). After a bench trial both defendants were found guilty as charged and sentenced to two to six years in the Illinois State Penitentiary. Both defendants have appealed.
On appeal, defendant Winters contends that the trial court abused its discretion by failing to consider Winters' request for admission to a drug abuse program. Defendant Ruffin contends that his sentence was excessive.
For the reasons hereafter stated we affirm the judgment and sentence as to defendant Ruffin. We vacate the sentence as to defendant Winters and remand for a new sentencing hearing.
It is defendant Winters' contention that the trial judge was on notice of the possibility that defendant was an addict and that the defendant was attempting to elect to be treated under the Dangerous Drug Abuse Act (Ill. Rev. Stat. 1973, ch. 91 1/2, par. 120.1 et seq.). Therefore, defendant Winters contends, the trial judge was required to exercise his discretion by considering whether Winters should be given treatment under this act. Winters also contends that the trial judge should have ordered an examination by the Department of Mental Health to determine whether Winters was an addict and would be aided by a drug abuse program.
The relevant sections of the Dangerous Drug Abuse Act are 8 and 10:
"§ 8. An addict charged with or convicted of a crime is eligible to elect treatment under the supervision of the Department instead of prosecution or probation, as the case may be, unless (a) the crime is a crime of violence, (b) the crime is a violation of Sections 401, 402(a), 405 and 407 of the Illinois Controlled Substances Act, enacted by the 77th General Assembly, or Sections 4(d), 5(d), 7, or 9 of the Cannabis Control Act, enacted by the 77th General Assembly, (c) the addict has a record of 2 or more convictions of a crime of violence, (d) other criminal proceedings alleging commission of a felony are pending against the addict, or (e) the addict is on probation or parole and the appropriate parole or probation authority does not consent to that election, or (f) the addict elected and was admitted to a treatment program on two prior occasions within any consecutive two year period. An eligible addict may not be admitted to a treatment program, however, unless the authorities concerned consent as hereinafter set forth.
§ 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. The Department shall report to the court the results of the examination and recommend whether the individual should be placed on probation and supervision for treatment. If the court, acting on the report and other information coming to its attention, determines that the individual is not an addict or is an addict not likely to be rehabilitated through treatment, the court shall proceed to pronounce sentence as in other cases. If the court determines that the individual is an addict and is likely to be rehabilitated through treatment, the court may place him on probation and under the supervision of the Department for treatment and of the proper probation authorities for probation supervision and may require such progress reports on the individual from the probation officer and the Department as the court finds necessary. No individual may be placed under supervision unless the Department accepts him for treatment.
Failure of an individual placed on probation and under the medical supervision of the Department to observe the requirements set down by the Department shall be considered a probation violation. Such failure shall be reported by the Department to the probation officer in charge of the individual and treated in accordance with probation regulations."
• 1 This statute has been interpreted to require a judge who has reason to believe that a defendant is an addict to inquire into the defendant's addictive state and to exercise his discretion in determining whether the defendant should get treatment under the Act. (People v. Melson (1976), 36 Ill. App.3d 71, 343 N.E.2d 258; People v. Newlin (1975), 31 Ill. App.3d 735, 334 N.E.2d 349.) The record must show that the judge did in fact exercise his discretion, and where the record did not indicate that the trial judge considered possible treatment of the defendant under the Act the sentence has been vacated and the case remanded for a new sentencing hearing. (People v. Melson (1976), 36 Ill. App.3d 71, 343 N.E.2d 258; People v. Miller (1976), 43 Ill. App.3d 290, 356 N.E.2d 1345.) It has been held that the trial judge was put on notice as to defendant's possible drug addiction where the presentence investigation report indicated that the defendant had used drugs, the report also stated that if the defendant was given probation then the probation officer should be given authority to direct the defendant to seek drug abuse help, and at the sentencing hearing the probation officer referred to the defendant's drug problems (People v. Miller (1976), 43 Ill. App.3d 290, 356 N.E.2d 1345); the probation report referred to the defendant as a known narcotics addict, the defendant told the court he had stolen to buy drugs and asked to be put on a drug program (People v. Robinson (1973), 12 Ill. App.3d 291, 297 N.E.2d 621); defendant's attorney told the court that the defendant was an addict and defendant asked to be put on a drug program, which was explained to the court by a drug counselor. People v. McCoy (1975), 29 Ill. App.3d 601, 332 N.E.2d 690.
• 2 In the case at bar the presentence investigation report states that defendant Winters had admitted to the use of marijuana and heroin and that defendant's heroin habit had averaged between $70 and $80 per day. At the sentencing hearing defendant's attorney told the court that the defendant was an addict and asked the court to consider "the drug abuse program." These statements were sufficient to give the trial judge reason to believe that the defendant was an addict. He was, therefore, required to exercise his discretion by inquiring into defendant Winters' possible addiction and by considering whether the defendant would benefit from treatment under the Act. At the end of a lengthy statement in mitigation on behalf of both defendants, their attorney requested the court to consider "the drug abuse program" for defendant Winters. The court responded "Okay." The State points to this as evidence that the judge did exercise his discretion and considered the possibility of treatment under the Act. But immediately following this response, which may or may not have been a specific response to the attorney's request, the court asked the defendants if they had anything to say prior to sentencing, then made a statement prior to sentencing in which there was no mention of defendant Winters' possible drug addiction nor of the Dangerous Drug Abuse Act. The record does not show any mention by any party of that Act. When asked by defendants' attorney why a sentence was imposed which was higher than the minimum possible, the court stated "* * * I am basing my sentence on the defendants' criminal background, upon the presentence report, and upon the facts of this case * * *." Since the record does not indicate whether the judge exercised his discretion by considering whether defendant Winters was an addict and would be helped by treatment under the Act, the sentence must be vacated and the case remanded for a sentencing hearing in conformity with this opinion.
• 3 The State also contends that because the defendant was on probation at the time of sentencing hearing, he had the burden under section 8 of the Act of establishing that the appropriate probation authority consented to his election of treatment under the Act. Since the record does not indicate that this showing was made, the State contends that the court properly denied defendant's request. The only support for this interpretation is found in People v. Norris (1976), 42 Ill. App.3d 301, 355 N.E.2d 696. There the court found that the trial judge had properly exercised his discretion in refusing defendant's request for treatment under the Act, but went on to note that since this sentence was pursuant to a probation revocation defendant would not be eligible for treatment unless he secured the consent of the probation authority (defined in People v. Phillips (1976), 39 Ill. App.3d 387, 350 N.E.2d 363, as the court that put the defendant on probation). The court stated it was "apparent" this consent was not given and this was another reason to sustain the judgment of the trial court. But in the case at bar, as we have already indicated, we cannot determine whether the trial judge exercised his discretion. Furthermore the trial judge here was not the judge who placed the defendant on probation, thus we cannot assume that the necessary consent was not given. Other cases have not supported the reasoning of Norris. Even when the sentencing was pursuant to a revocation of probation, when the record did not reflect the exercise of the judge's discretion the sentence has been ...