APPEAL from the Circuit Court of Cook County; the Hon. PAUL F.
GERRITY, Judge, presiding.
MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
Defendant Alphonso Randolph, *fn1 having been sentenced to a term of 4 years' probation after pleading guilty to a theft offense, was brought before the circuit court on charges that he violated the terms of probation. After overruling defendant's objections to the proceeding, the circuit court conducted a hearing on the probation violation charges. The court found defendant to have violated probation and sentenced him to a term of 3 years' incarceration on the underlying theft offense.
On appeal, defendant contends (1) that the circuit court lacked jurisdiction to entertain the probation violation proceedings on the day on which they were held; (2) that a supplemental petition for violation of probation filed by the State 43 months after the initial petition was prejudicial; (3) that the circuit court erred in admitting evidence allegedly related to a crime upon which the probation violation was based where neither a chain of custody nor positive identification thereof was allegedly made; (4) that the evidence presented by the State failed to demonstrate by a preponderance that defendant had violated probation on either of two occasions; and (5) that the circuit court's sentence was excessive.
On June 18, 1975, defendant pleaded guilty to one count of theft. (Ill. Rev. Stat. 1975, ch. 38, par. 16-1(d)(2).) He received a sentence of 4 years' probation. In the early morning hours of December 31, 1975, defendant was arrested by an officer of the Posen (Illinois) Police Department for attempt theft. (Ill. Rev. Stat. 1975, ch. 38, par. 8-4.) As a consequence of this arrest, the State prepared a petition for violation of probation. The parties here dispute whether this petition was indeed filed with the court on April 27, 1976. In any event, defendant appeared in court on that date without his attorney. In light of this circumstance, the court continued the proceedings.
The common law record shows that thereafter the case was continued for various reasons over the next year. The common law record contains a gap for the period between May 1977 and November 1979.
In the interim, defendant was again arrested on February 16, 1978, in Markham, Illinois. As a result of this arrest, on November 13, 1978, the State filed a supplemental petition for violation of probation. On December 13 of that year, the circuit court conducted a hearing on the original and supplemental petitions. At that hearing, the State called the following witnesses to testify concerning both arrests underlying the two petitions before the court.
Sergeant Randall E. Wolfe of the Posen Police Department, who arrested defendant on December 31, 1975, observed defendant's activities that night in and around a black truck parked on the lot of Deel Ford. Upon inspecting the truck after defendant had left the scene, Wolfe found that the truck's right vent window had been broken and its ignition had been pulled by a "dent puller." He also found that the truck's engine was running. From the truck, Wolfe recovered the "dent puller" and a screwdriver, which he tagged but made no other marks upon. These items were admitted into evidence over defendant's objection at the hearing.
Joseph Underwood, Deel Ford's security agent on that night, testified he heard Wolfe's radio call concerning defendant's activities. Underwood saw defendant flee from the lot. He later examined the truck and found that its right front window had been broken, "the ignition was running and the engine had been pulled." Underwood also testified as to his employment background with Deel Ford.
Officer William D. Newton of the Harvey (Illinois) Police Department testified regarding defendant's February 16, 1978, arrest. He observed several individuals, including defendant, loading car parts from a garage onto a truck. In the garage, he saw two cars which were missing those parts. Later, when executing a search warrant for the garage, he learned by radio call that the cars were stolen. Defendant was arrested later that day.
Defendant testified that on December 31, 1975, he had been visiting his sister who lived near Deel Ford; that he went to a Texaco station to buy a can of soda, and was stopped by a policeman. The latter accused him of being a thief and placed him under arrest. This policeman then turned defendant over to Sergeant Wolfe who had arrived on the scene. Defendant denied that he had been at the Deel lot that night. He denied that he possessed a "body puller" used to pull ignitions.
Thereafter, the trial court ruled that the State had proved by a preponderance of the evidence that defendant violated probation on December 31, 1975, and February 16, 1978. After a presentence investigation, report, and hearing, defendant elected to be sentenced under the statutory provisions currently in effect. The trial court sentenced defendant to 3 years' imprisonment for the theft offense underlying the initial sentence of probation. No credit was given for time on probation.
Defendant first claims that his probation term had expired prior to the hearing for violation, and that the circuit court therefore lacked jurisdiction to entertain the probation violation petitions. Central to defendant's contention is his assertion that the State never formally filed the original petition which the State argues was filed on April 27, 1976.
• 1 The circuit court retains jurisdiction over a defendant who is serving a sentence of probation only so long as that period is yet in effect. This is so unless it has been tolled or revocation proceedings have begun within the period which have not been resolved due to a "sufficient reason for delay." Otherwise, once the period has lapsed, probation is terminated and there remains nothing to revoke. (See People v. Ramirez (1970), 131 Ill. App.2d 268, 271, 266 N.E.2d 520.) Here, unless probation had been tolled or revocation proceedings had ...