APPEAL from the Circuit Court of Kane County; the Hon. RICHARD
WEILER, Judge, presiding.
MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 19, 1979.
Defendant appeals from an order denying her petition for a discharge from an extradition warrant which was based on the charge that she was a fugitive from justice. (Ill. Rev. Stat. 1975, ch. 60, par. 30.) Defendant contends that she may not be considered a fugitive from justice in another State under the Extradition Act since the offense which amounts to a violation of probation in the demanding State was committed outside that State. She also contends that in any event the misstatement in the Governor's demand for extradition that the offense was committed while defendant was within the demanding State is a substantial defect sufficient for discharge.
On February 22, 1977, an information was filed in Kane County charging that defendant had committed the offense
"of Fugitive from Justice (Felony, in violation of Chapter 60, Section 30, of the Illinois Revised Statutes, as amended, in that, defendant after having been charged in Tuscaloosa County, State of Alabama with a probation violation and Grand Larceny, a certified copy of said charges is attached to, incorporated in and made a part of this complaint by reference thereto, she did flee the State of Alabama with the intent to avoid prosecution."
Defendant was arrested on this charge and admitted to bond. On March 22, 1977, the Governor of Alabama forwarded extradition papers including warrants charging defendant with the crime of violation of probation; an application for extradition stating that subsequent to being placed on probation for a period of five years in Alabama with inactive supervision to be exercised by Illinois authority she was arrested for theft and possession of marijuana "for which crime she was convicted and sentenced by Illinois authorities." Proof of defendant's original conviction for grand larceny in Alabama was also attached; as well as proof of defendant's violation of probation and the judgment revoking probation.
Defendant filed a "PETITION FOR HEARING" on April 18, 1977, charging, among other things, that the restraint of the defendant on bond was illegal in that the papers on which the warrants were issued were insufficient since defendant was not present in the State of Alabama on February 22, 1977, when the offense alleged to be a violation of probation was committed, denied fleeing from the State of Alabama and charged that the warrant issued by the Governor of Illinois was therefore void. Her petition and prayer for discharge was denied after an evidentiary hearing from which defendant has appealed.
In the evidentiary hearing defendant testified that she was found guilty of the offense of grand larceny in Alabama in 1974 but claims that she was never informed by the judge that she was being placed on probation. She said that the public defender told her that she had to leave the State of Alabama and she was not to return to the State. She testified that she went to live in Chicago and never returned to the State of Alabama after being told to leave in April 1974. She had never been on probation prior to the incident in Alabama, but admitted that since returning to Illinois she had been placed on probation in this State.
The Uniform Criminal Extradition Act encompasses these circumstances:
"The Governor of this State may also surrender, on demand of the Executive Authority of any other state, any person in this State charged in such other state * * * with committing an act in this State, or in a third state, intentionally resulting in a crime in the state whose Executive Authority is making the demand." Ill. Rev. Stat. 1975, ch. 60, par. 23.
It is undisputed that defendant at no time returned to Alabama after her conviction in 1974. Also, despite her claim that she received no papers and did not know she had been placed on probation for five years, the record belies this. There is also no dispute that she was thereafter convicted in Illinois of offenses which would amount to a violation of the Alabama probation order.
1, 2 Even though it cannot be said that defendant fled from Alabama after either committing the original offense for which she was placed on probation or after committing the offenses in Illinois which formed a basis for the revocation of her Alabama probation, she may still be considered a fugitive from justice in the demanding State. (See Ill. Rev. Stat. 1975, ch. 60, par. 30; People ex rel. Ross v. Becker, 382 Ill. 404 (1943).) In Becker, the Illinois Supreme Court, speaking in reference to a similar Federal constitutional provision, stated:
"[A] paroled prisoner who has left the State of conviction pursuant to the terms of his parole, * * * but later violates his parole, is a person charged with crime and a fugitive from justice subject to extradition." 382 Ill. 404, 411.)
(See also People ex rel. Westbrook v. O'Neill, 378 Ill. 324, 328 (1941).) The fact that this defendant was on probation rather than parole ...