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People v. Susberry

OPINION FILED JANUARY 16, 1979.

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

v.

LEONARD SUSBERRY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. ANTHONY J. BOSCO, Judge, presiding.

MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

Lenard Susberry (spelled in the briefs "Leonard Susberry") (defendant), was tried before a jury for alleged violations, on November 16, November 27 and December 14, 1973, of the statute pertaining to criminal housing management. (Ill. Rev. Stat. 1973, ch. 38, par. 12-5.1.) Verdicts of not guilty were returned as to the two November dates and a verdict of guilty was returned as to December 14, 1973. On June 21, 1974, the trial court fined defendant $500 and sentenced him to probation for 18 months. Close to 1 year later, on April 7, 1975, the trial court entered an order revoking probation and sentenced defendant to imprisonment for 6 months. On motion of defendant this court allowed leave to defendant to file a late notice of appeal.

In this court defendant contends that the criminal housing management statute is so vague and lacking in standards that it violates requirements of due process; the complaint against defendant did not charge an offense with specificity and thus did not apprise him of the nature of the charge; defendant did not have effective assistance of counsel; defendant's probation should not have been revoked and the sentence is excessive.

Our examination of the briefs and the complete record convinces us that it is incumbent upon this court to consider only the issues pertaining to revocation of the probation.

The record shows that after the original judgment entered against defendant on June 21, 1974, his private counsel filed no notice of appeal. Defendant's probation was revoked and the sentence of imprisonment was entered on April 7, 1975. On April 22, 1975, the same attorney filed a notice of appeal from this order. Thereafter this attorney did nothing further to process the appeal. On April 29, 1976, the trial court entered an order directing the attorney to appear before the court in person on a day certain or be held in contempt for dilatory practice. Even this order was apparently not sufficient to obtain progress in the appeal from the probation revocation. On July 6, 1976, the trial court dismissed the appeal for failure to comply with the rules.

Defendant then obtained new counsel. A motion was made to vacate the order of dismissal. This motion was denied with the direction that new counsel, who represent defendant in this court, seek permission here for leave to file the late notice of appeal. On June 20, 1977, on motion of defendant, this court entered an order granting defendant leave to file a late notice of appeal. This court then had before it and believed that it was acting only upon the same notice of appeal which had been timely filed on April 22, 1975, and then dismissed on July 6, 1976. A copy of that notice of appeal was transmitted to the trial court for filing by the clerk of this court.

We are presently advised that the papers filed by defendant's present counsel in this court also included a document headed "Late Notice of Appeal." This document prays no relief. It describes both the original judgment on June 21, 1974, and the judgment for revocation of probation entered April 7, 1975. It was never the intention of this court to grant leave to file a late notice of appeal pertaining to the original judgment of June 21, 1974. This notice of appeal was apparently never filed in the trial court.

• 1, 2 To clarify the entire matter, we now hold that we intended to and did vest this court with jurisdiction only to review the revocation of probation and sentencing proceedings which occurred on April 7, 1975. Therefore we conclude that we are without jurisdiction to consider any of the contentions of the defendant pertaining to the original conviction of 1974. (See People v. Schultz (1975), 27 Ill. App.3d 844, 848, 327 N.E.2d 334; People v. DeTienne (1974), 17 Ill. App.3d 708, 309 N.E.2d 38, appeal denied (1974), 56 Ill.2d 588.) In addition, we cannot construe the notice of appeal pertaining to the probation revocation as granting us authority or jurisdiction to review the initial judgment of conviction. (See People v. Stueve (1977), 66 Ill.2d 174, 178, 361 N.E.2d 579.) Therefore, as above stated, this opinion is limited to a discussion of the issues pertaining to revocation of probation and the sentence imposed by the order of April 7, 1975. Our study of this situation convinces us that we need not consider the argument by defendant that the sentence is excessive. It remains then to consider the revocation of probation. The facts pertinent to this issue follow.

On August 20, 1970, defendant purchased a building at 1007 East 41st Place and 4119-29 South Ellis in Chicago. The property contained 37 apartment units, all of which required extensive repairs. Defendant began to repair the units and to rent them upon completion of the repairs. On November 16, 1973, building and plumbing inspectors of the City of Chicago visited the premises in response to a tenant's complaint. A second inspection occurred on November 27, 1973, by inspectors and State's Attorney's investigators, who conducted tenant interviews. On December 3, 1973, 10-day warning letters were served on defendant and his agent for rent collection. On December 14, 1973, a final inspection was made by the building and plumbing inspectors. Institution of these proceedings followed.

At trial, building inspectors testified that they found the building to be in defective condition and dangerous to the health and safety of its inhabitants. For example, four exterior elevations had fractured walls with loose and falling bricks. The rear porch was rotted, with broken parts and damaged uprights. All three floors and the basement were infested with rats and cockroaches. There were no refuse containers on the rear porches so that rubbish and debris were strewn about. The inspectors also noted plumbing code violations.

On June 21, 1974, the trial court entered a judgment order which provided that defendant be fined $500 and placed on probation for 18 months. The common law record reflects that the order also provided:

"Condition of probation is that building is to be reinspected six months from today and reports forwarded to the defendant, state's attorney and to the Court."

The printed draft order granting probation entered by the trial court that day recites this same condition regarding probation. It also contains the usual statement concerning a monthly report to the probation officer by defendant and performance of statutory conditions, but contains no additional statement or information regarding reinspection of the property.

The report of proceedings shows that at the court hearing held June 21, 1974, prior to entry of the order, the trial court stated that there would be a reinspection of the property in 6 months. The trial court also stated that the State's Attorney would furnish defendant ...


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