APPEAL from the Circuit Court of Cook County; the Hon. HAROLD
W. SULLIVAN, Judge, presiding.
MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 9, 1978.
On May 27, 1975, the defendant, David Smithson, was sentenced to two concurrent 5-year probationary terms, following his plea of guilty to two counts of burglary. (Ill. Rev. Stat. 1975, ch. 38, par. 19-1.) As a condition of his probation, defendant was to serve the first four months of the sentence in the Cook County Jail, considered served as actually having been served. On March 5, 1976, defendant pled guilty to rape and deviate sexual assault. (Ill. Rev. Stat. 1975, ch. 38, pars. 11-1, 11-3.) After accepting this guilty plea, the trial court sentenced defendant to a term of 4 to 6 years in the Department of Corrections for these two offenses. On October 14, 1976, the State filed a petition for violation of probation. On November 30, 1976, after two continuances, one by the State and one by defendant, a hearing was conducted which resulted in the revocation of probation and defendant's being sentenced to 6 to 18 years in the penitentiary for each count of burglary, the sentences to run concurrently. These sentences were also to run concurrent to his 4- to-6 year sentence for rape and deviate assault. The trial court granted defendant credit for the four months he served in jail as part of his 5-year probationary sentence. Additionally, defendant received credit for the time served in jail since his arrest for rape on January 1, 1976, until the commencement of the violation of probation hearing.
In this appeal, defendant contends that the delay in holding the probation revocation hearing violated his fourteenth amendment right to due process; that the trial court abused its discretion in imposing sentences of 6 to 18 years following the revocation of his probation; and that the court's failure to consider whether he should have been given credit for time on probation or even to determine the amount of such time, necessitates remandment of the cause to the trial court for resentencing.
We affirm the judgment of the trial court.
The following evidence was adduced at the probation revocation hearing: Barbara Gladden, an investigating police officer in the rape case, was called as a witness for the State. At this point, defense counsel stipulated to Investigator Gladden's written account of this occurrence. According to this report, the victim was awakened by a loud noise in the early morning of January 1, 1976, and sat up in bed to find defendant running at her. Defendant came over to her bed, grabbed at the front of her robe and tore it off. Defendant then punched the victim in the jaw, grabbed her hair and forced her to have sexual intercourse with him and to also perform oral copulation. The victim was unsuccessful in her efforts to resist defendant.
After completing these acts, defendant seemed to doze off. At this time, the victim ran upstairs to her neighbor's apartment. When the victim and her neighbor, Jack Purnell, returned downstairs, defendant was gone. However, moments later defendant again appeared at the victim's door, attempting to break into her apartment. Purnell was able to slam the door, and defendant fled the premises.
Purnell then called the police, who upon their arrival, found the victim in an excited state. While examining the victim's bedroom, the police found defendant's wallet, together with his photograph and driver's license. The police officers then went to the defendant's home and observed that he had scratches on his elbow and cheek. Defendant explained that he was in a fight with an "unknown Puerto Rican." Defendant also stated that he was "an addict and made his living by burglarizing." Defendant was positively identified by both the victim and Purnell at a police lineup.
Although defendant did not deny any of the foregoing facts, he pleaded not guilty at the violation of probation hearing. Defendant based his plea on the contention that the Four Term Act barred such a proceeding. (Ill. Rev. Stat. 1975, ch. 38, par. 103-5(a).) However, the trial judge ruled that this Act was inapplicable to a probation revocation proceeding.
After entering a finding of violation of probation, the court then heard arguments in aggravation and mitigation. Defense counsel asked for leniency. The State called the trial court's attention to the fact that defendant had previously requested leniency when he was adjudged guilty of burglary and when he was convicted of rape and deviate sexual assault. The trial court then discussed defendant's potential for rehabilitation. In view of the crimes committed by defendant while on probation and defendant's own admission that he was dependent upon burglary to support his heroin addiction, the trial court concluded that there was little hope for his rehabilitation. In sentencing defendant, the trial court indicated that it was necessary that defendant receive a minimum sentence of six years, but with credit for the time he had served since his arrest for rape in January 1976. After a colloquy concerning the proper sentence to be given if defendant was to receive a minimum of six years, the trial court again brought up the issue of credit for time served. Defendant's attorney stated that defendant was entitled to "* * * all credit for time served, including the four months served prior to being placed on probation * * *" Defendant was sentenced to two concurrent terms of six to 18 years, with credit for the four months served in jail as part of his five-year probation, and also with credit for the time served in jail since his January, 1976 arrest for rape. No mention was made of credit for the period of probation from May 27, 1975, to January 1, 1976.
Defendant asserts initially that his due process rights were violated by the approximately 11-month lapse in time between his violation of probation and the revocation hearing. The State contends that the probation revocation hearing was held within a reasonable time and that the lapse of time did not prejudice defendant.
As is stated above, defendant was arrested on January 1, 1976, for rape and was found guilty of rape and deviate sexual assault on March 5, 1976. On October 14, 1976, the State filed a petition for violation of probation. After two continuances, one each by the State and the defendant, the court conducted the probation revocation hearing on November 30, 1976, and revoked defendant's probation.
1 A defendant is entitled to a probation revocation hearing within a reasonable time. (See People v. Williams (1973), 10 Ill. App.3d 428, 430, 294 N.E.2d 61.) What constitutes a reasonable time depends on the facts and circumstances of each case. (People v. Malone (1976), 41 Ill. App.3d 914, 918-19, 354 N.E.2d 911.) One factor to be considered is a lack of prejudice to defendant caused by the delay, either claimed by him or evident from the record, as well as his failure to request an earlier hearing. (People v. Kostaken (1958), 16 Ill. App.2d 395, 399, 148 N.E.2d 615.) However, the Four Term Act governing trials is not applicable to probation violation hearings. (People v. Williams (1973), 10 Ill. App.3d 428, 294 N.E.2d 61.) The reason for this is that a probationer is not in the same category as one charged by indictment or information, since he ...