APPEAL from the Circuit Court of Kane County; the Hon. JOHN S.
PETERSON, Judge, presiding.
MR. JUSTICE NASH DELIVERED THE OPINION OF THE COURT:
On January 8, 1973, defendant, Jimmy Bullard, pleaded guilty to the offense of robbery (Ill. Rev. Stat. 1971, ch. 38, par. 18-1) and was sentenced to a term of three years probation conditioned upon the payment of restitution, court costs and a probation fee in the total amount of $352.40. On February 20, 1976, after a hearing, defendant's probation was revoked and he was sentenced to a term of not less than five years nor more than 15 years in the penitentiary for his original robbery offense.
The revocation of defendant's probation was based upon the trial court's findings that he had violated the conditions of his probation by failing to make the required payments and by committing a robbery on November 9, 1975. Defendant brings this appeal from the trial court's order revoking his probation, contending: (1) that the State failed to prove that his failure to make restitution was wilful; (2) that the State failed to prove by a preponderance of the evidence that defendant committed the alleged robbery; and (3) that questions and comments of the trial judge suggested bias against defendant and his witnesses at the revocation hearing. For the reasons discussed below we find merit in defendant's first and third assignments of error which requires reversal of the trial court's findings that defendant violated conditions of his probation by failing to make the required payments and by committing the alleged robbery.
Defendant's first contention is that the State failed to prove that his failure to comply with the financial obligation imposed upon him as a condition of his probation was wilful.
At the hearing on the State's petition to revoke defendant's probation the State's evidence consisted solely of the testimony of the bookkeeper for the Adult Probation Department that defendant still owed $142.40, that his most recent payment was $100 on January 8, 1976, and that the most recent payment prior to that was $10 on May 7, 1974. The bookkeeper testified she had no personal knowledge of defendant's financial circumstances.
Defendant testified that over the 36-month period of this probation, from February 1973 to February 1976, he had not worked regularly, he had drawn only two unemployment checks and he had spent part of 1974 in a government-sponsored program learning to become a welder. Defendant further testified that he had been trying to pay this obligation yet could not then afford to pay even $10 per month. Based on this testimony the trial court found that defendant, having failed to make the payments required of him as a condition of probation, was in violation and the sentence of probation would be vacated.
At the sentencing hearing held on March 5, 1976, defendant presented a motion requesting a new revocation hearing arguing, in part, that a specific finding that nonpayment of financial obligations imposed as a condition of probation was wilful was required to sustain a petition to revoke probation. (Defendant also informed the court that he had borrowed money and paid the remaining balance of $142.40 since the earlier hearing.) This motion was denied by the trial court.
During the sentencing hearing defendant testified that he had been employed from July 1975 to December 1975 as a welder earning approximately $95 per week. He also testified that during that time he spent his earnings on hospital bills, rent, child support and a used car which he purchased to use in traveling to and from work.
Section 5-6-4 of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005-6-4) sets forth the procedure for a hearing of a petition charging a violation of a condition of probation:
"(b) The court shall conduct a hearing of the alleged violation. * * *
(c) The State has the burden of going forward with the evidence and proving the violation by the preponderance of the evidence. * * *
(d) Probation * * * shall not be revoked for failure to comply with conditions of a sentence which imposes financial obligations upon the offender unless such failure is due to his wilful refusal to pay."
Our supreme court has made it clear that under the Unified Code of Corrections it is incumbent on the State to prove that a defendant's failure to comply with financial conditions of a sentence of probation was a wilful refusal to pay before probation can be revoked for such failure to comply. People v. Harder (1975), 59 Ill.2d 563, 322 N.E.2d 470; People v. Boucher (1974), 57 Ill.2d 225, 311 N.E.2d 679.
In Boucher the supreme court stated that the trial court had made no finding of a wilful refusal to pay, that it could not determine from the record the character of defendant's noncompliance with the restitutional condition of his probation and, therefore, vacated the judgment of the appellate court and remanded the cause to the circuit court for further proceedings. In Harder the court stated that the trial court had made no finding of a wilful refusal to pay, that there was nothing in the record which would have supported such a ...