APPEAL from the Circuit Court of Cook County; the Hon. FRED G.
SURIA, Judge, presiding.
MR. JUSTICE CAMPBELL DELIVERED THE OPINION OF THE COURT:
On February 7, 1974, the defendant, William Speight, pleaded guilty to petty theft and possession of a stolen vehicle. *fn1 He was sentenced to three months on the petty theft charge to be served concurrently with a two-year term of probation for possession of the stolen vehicle. Probation was conditioned on the defendant's spending the first six months of the probation period in jail. The court gave the defendant credit toward both sentences for his preconviction incarceration, a period of little over three months in total.
On February 2, 1976, five days before the defendant's probation period ended, the State filed a petition to vacate probation alleging that the defendant had never reported to his probation officer, could not be found, and that armed robbery charges were pending against him under the name of Freddie Jones. The State also requested a warrant for the defendant's arrest at that time. The hearing on the State's petition was continued until February 4, at which time the defendant and his counsel, a court-appointed public defender, were present. The arrest warrant sought by the State was never issued because the defendant was found to be in custody on the armed robbery charges. *fn2 On February 7, 1976, the defendant's probation period terminated. After numerous continuances the probation revocation hearing took place on August 15, 1977, at which time the defendant's probation was revoked and he was sentenced to a term of from two to six years imprisonment.
The defendant raises five issues on appeal. First, whether the court had jurisdiction over the defendant at the time that it revoked his probation because no warrant was issued to toll the running of his probation term. Second, whether credit given for the defendant's presentence incarceration acted to shorten his probation term or only the jail term given to the defendant as a condition of probation. Third, whether the defendant was denied due process when he stipulated that he was the person named in a certified copy of an armed robbery conviction. Fourth, whether the defendant's probation was revoked by a preponderance of the evidence. And fifth, whether the sentence given to the defendant was in excess of that allowed by law.
We affirm defendant's conviction but remand for resentencing.
The defendant initially contends that the trial court had no jurisdiction over him at the time that his probation was revoked in that his probation period terminated on February 7, 1976, prior to the time that his probation was revoked on August 15, 1977, because no summons or warrant was issued to toll the running of his probation period. The defendant asserts that section 5-6-4(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1975, ch. 38, par. 1005-6-4(a)) outlines the only procedure by which a court may retain jurisdiction over a defendant where a petition to revoke is filed, but no order is issued pursuant to that petition prior to the running of the probation term. The defendant has not referred us to any decisions which support this interpretation of section 5-6-4(a), nor have we been able to find any reported decisions on point.
Section 5-6-4(a) states that:
"When a petition is filed charging a violation of a condition, the court may:
(1) order a summons to the offender to appear; or
(2) order a warrant for the offender's arrest where there is danger of his fleeing the jurisdiction or causing serious harm to others or when the offender fails to answer a summons.
The issuance of such warrant or summons shall toll the sentence of probation or of conditional discharge until the final determination of the charge, and the term of probation or conditional discharge shall not run so long as the offender has not answered the summons or warrant."
Although we agree with the defendant that under section 5-6-4(a) probation is tolled by the issuance of a warrant or summons (People v. Cirullo (1963), 40 Ill. App.2d 181, 189 N.E.2d 381), we reject the defendant's conclusion that this section provides the exclusive method available to toll probation.
1, 2 Jurisdiction over a defendant in criminal matters requires both personal and subject matter jurisdiction. (People v. Farley (1951), 408 Ill. 194, 96 N.E.2d 452; see generally 21 Am.Jur.2d Criminal Law § 376 (1965).) Personal jurisdiction is attained by a defendant's appearance before the court. (Ker v. People (1884), 110 Ill. 627, aff'd sub nom. Ker v. Illinois (1886), 119 U.S. 436, 30 L.Ed. 421, 7 S.Ct. 225; People v. Bliss (1970), 44 Ill.2d 363, 255 N.E.2d 405.) This presence may be obtained by the use of a summons, warrant, the defendant's voluntary presence if the defendant is out on bail, or where the defendant is already in custody by notifying the proper authorities of the date and time in which to bring the defendant before the court. Once a trial court obtains jurisdiction, subject matter and personal, on the original charge that court retains jurisdiction until the defendant fulfills the terms of his probation. Ill. Rev. Stat. 1975, ch. 38, par. 1005-6-3(10).
3 Generally, a probationer is at liberty when a petition to revoke is filed and, therefore, a warrant or summons is necessary to bring the probationer before the court. However, in this case, because the defendant Speight was in custody at the time the petition to revoke was filed or very shortly thereafter, we are faced with the question reserved by the Illinois Supreme Court in People v. Dawes (1972), 52 Ill.2d 121, 284 N.E.2d 629: whether a warrant is necessary to toll a probation period under our tolling statute in order to retain jurisdiction past the end of the probation term. Upon an analysis of the statute and the purpose for which warrants and summons are issued, we are convinced that the legislature did not intend section 5-6-4(a) to be the sole or mandatory method for attaining jurisdiction over a defendant or tolling probation when probation revocation proceedings are commenced.
Section 5-6-4(a) provides two methods to secure a probationer's attendance in court incident to a probation revocation hearing. Where a probationer might remove himself from the court's jurisdiction, harm someone, or has failed to respond to a summons, a warrant may be sought. In other cases, a summons may ...