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In Re G.l.c.





APPEAL from the Circuit Court of Champaign County; the Hon. ROBERT J. STEIGMANN, Judge, presiding.


This cause comes before us on an appeal by the respondent minor from the termination of his probation and his commitment to the Department of Corrections.

On May 22, 1978, the minor was placed on probation for a period of two years, after having been adjudged a delinquent by the circuit court of Champaign County. In September 1978, a petition to revoke that probation was filed alleging that the respondent had violated conditions of his probation in failing to keep ordered appointments with the probation officer and for disorderly conduct. The respondent contends that the State failed to prove by a preponderance of the evidence that he committed disorderly conduct, and that, in any event, the trial court abused its discretion in committing him to the Department of Corrections. The order must be reversed.

The only State witness testifying at the revocation hearing concerning the facts which gave rise to the allegation of disorderly conduct was an administrator at Urbana High School. He stated that respondent was involved in a skirmish with another student at the school on August 30, 1978, and that after respondent and the other student had been restrained and respondent had temporarily left the area, he returned carrying a bottle in his hand and stating that he was going to "crown" his opponent. The administrator then attempted to persuade respondent to come with him, but respondent refused and searched through a portion of the building for the other student. Respondent apparently entered two hallways leading to two classrooms but the record is not clear as to whether he actually entered either classroom. Respondent finally surrendered the bottle to other school personnel. When asked whether the minor's conduct had disturbed him, the administrator replied, "[Y]es, to some extent. And then no to another extent * * *," explaining that he was usually able to talk with respondent and calm him down but that such was not the case on that occasion.

The respondent's probation officer also testified at the hearing. Respondent had been placed on probation. The court had ordered that the minor report each day to his probation officer. During the period between the time he was placed on probation and August 7, 1978, the respondent failed to make three of the ordered daily reports.

• 1 One of the elements of the offense of disorderly conduct is that the defendant knowingly act in an unreasonable manner so as to alarm or disturb another and to provoke a breach of the peace. (Ill. Rev. Stat. 1977, ch. 38, par. 26-1.) The only way in which the school administrator was disturbed was in his own lack of ability in this instance to control the minor's behavior. Even that statement was qualified by the administrator who did not say for certain that he was disturbed. This testimony standing alone, as it does in the record, does not support a finding, even by a mere preponderance, that the minor in fact committed the offense of disorderly conduct. There is simply a failure of proof on one element of the offense. The finding of a probation violation upon this ground is contrary to the manifest weight of the evidence. See In re Ephriam (1978), 60 Ill. App.3d 848, 377 N.E.2d 49.

• 2 The State contends that even if this court reverses the finding of a probation violation predicated on the allegation of disorderly conduct, we should affirm the revocation on the basis that the respondent had failed to report to his probation officer as ordered. (See People v. McCaster (1974), 19 Ill. App.3d 824, 313 N.E.2d 308; People v. Freeman (1964), 49 Ill. App.2d 464, 200 N.E.2d 146.) It is correct that the evidence in the record shows the respondent failed to report as ordered to his probation officer. It must be noted that the original order of probation designated the minor as a high-risk probationer and that he was required to report to the probation officer daily. That original order of probation was entered on May 22, 1978. Therefore, what is at issue is the minor's failure to report, on a daily basis, for only three days during the probation period. His failure to do so, under the circumstances, is simply not a sufficient ground to revoke probation and to transfer custody of the minor to the Department of Corrections.

In support of the revocation of probation and the commission of the minor to the Department of Corrections, the State argues that the trial judge made a specific finding that all other juvenile resources had been tried and that the minor had failed to respond to any of those resources. However, the record discloses that both the reports from Operation Breakout at Darrow Hall and the Champaign County Mental Health Center indicate that progress was being made with the minor. The record does not support the trial court's decision that the commission of the respondent to the Department of Corrections, Juvenile Division, was the only recourse available and therefore that decision cannot be sustained. The choice of a dispositional order in juvenile matters rests within the sound discretion of the trial court (In re Buchanan (1978), 62 Ill. App.3d 463, 379 N.E.2d 122.) That discretion was abused here.

For the foregoing reasons, the order of the trial court terminating the respondent's probation is reversed and this cause is remanded to the circuit court of Champaign County with directions to reinstate the minor's probation.

Reversed and remanded with directions.

REARDON, P.J., concurs.

Mr. JUSTICE GREEN, dissenting:

I do not agree that the only conclusion that could reasonably be drawn from the testimony of the school administrator was that his disturbance arose solely from his disappointment at being unable to control the minor. He stated in part:

"* * * Yes, I — did get a bit upset from the standpoint that usually I'm able to get [G.L.C.] to settle down. Well, [G.L.C.] never did, in my opinion. And I got a bit upset about that, because he had the pop bottle. At one point, I tried to physically take it. But knowing [G.L.C.], that's not the best thing to do. So, uh, yes I was after I found out that — after I discovered there was no ...

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