Docket No. 53959. — Appeal from the Appellate Court for the
Fifth District; heard in that court on appeal from the Circuit
Court of Madison County, the Hon. William L. Beatty, Judge,
Docket No. 54148. — Appeal from the Appellate Court for the
Second District; heard in that court on appeal from the Circuit
Court of Winnebago County, the Hon. Robert French, Judge,
JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 29, 1982.
Mary Robinson, Deputy Defender, and Marilyn Martin, Assistant Defender, of the Office of the State Appellate Defender, of Elgin, for appellant.
Tyrone C. Fahner, Attorney General, of Springfield (Melbourne A. Noel, Jr., Thomas E. Holum, and Carolyn B. Notkoff, Assistant Attorneys General, of Chicago, of counsel), for the People.
We granted leave to appeal and consolidated these cases to consider whether a trial court has authority to impose as a condition of probation a term of delayed imprisonment to be served during the final months of the probation period. In cause No. 53959 defendant Bill Tipton was convicted in the circuit court of Madison County of unlawful delivery of what was represented to be a controlled substance. He was sentenced to a period of two years' probation subject to several conditions, including that he serve the last 60 days of his probation period in the county jail. No provision was made for a remission hearing. Tipton appealed the sentence, and the appellate court, in a Rule 23 order (73 Ill.2d R. 23), vacated the term of imprisonment (People v. Tipton (1980), 85 Ill. App.3d 1202) based upon its previous decision in People v. Shook (1980), 86 Ill. App.3d 174.
In cause No. 54148 defendant Jamie Richardson was convicted of battery and sentenced by the Winnebago County circuit court to a probation period of one year, to run concurrently with his probation in a felony case. The February 13, 1979, order imposed particular conditions as follows:
"9. Defendant sentenced to 120 days in County Jail — last 120 days of probation period — Defendant shall appear Oct. 12, 1979 at 9:30 A.M. and Court will consider remitting all or part of sentence.
10. Defendant to follow felony probation directive to obtain education and to appear June 13, 1979 at 9:30 A.M. to report progress.
11. If defendant violates probation, sentence to be served upon finding of violation."
Richardson appeared without counsel at the remission hearing some eight months later. He was advised of an adverse probation report indicating he had violated probation in another case and failed to report to the probation officer in this case. He was also told of the recommendation of the probation officer that he serve the 120 days' sentence in this case. The trial court refused to modify the sentence at that time but appointed counsel and advised Richardson that he could petition for further hearing. Thereafter, Richardson appeared with counsel and, rather than presenting evidence in his behalf, argued that the action was in reality one to revoke probation under section 5-6-4 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005-6-4), and that a plenary hearing was required by the statute. The record indicates that the trial court considered this argument as a motion to reconsider the decision not to modify. The motion was further argued at a subsequent hearing at which the State made offers of proof consisting of the court's records of proceedings to revoke the concurrent probation in the felony case. Defendant, in that case, had apparently admitted violating probation by committing one theft, and testimony by cross-examined witnesses had indicated his guilt of an additional theft. Defendant indicated he did not believe the proceedings in the other case, which had resulted in a sentence of 60 days on a work release program, could again be considered here. However, he specifically declined the opportunity to present evidence or cross-examine as to the proffered proof. The trial court denied relief. The appellate court, in a Rule 23 order (73 Ill.2d R. 23), dismissed the appeal as untimely, holding that it had no jurisdiction since defendant attacks were on the propriety of the sentence as originally imposed, which should have been appealed at the time of imposition. 87 Ill. App.3d 1198.
Defendant Tipton here urges, relying on People v. Shook (1980), 86 Ill. App.3d 174, that the imposition as a condition of probation of a term of imprisonment to be served at the end of a period of probation is legally impermissible and, in any event, constitutes an abuse of the trial judge's discretion. Defendant Richardson, whose condition of imprisonment, unlike Tipton's, was expressly subject to reconsideration, confines his argument here to whether an order denying remission is appealable and whether the procedural protections afforded him in connection with the remission hearing comport with due process.
We consider first the appealability of the order denying remission in Richardson's case. Section 5-6-4(f) of the Unified Code of Corrections (Ill. Rev. Stat. ...