APPEAL from the Circuit Court of Cook County; the Hon. THOMAS
P. DURKIN and the Hon. RICHARD L. SAMUELS, Judges, presiding.
JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
Defendant, Clavin Newell, was found guilty of violating his probation and sentenced to a term of 3 years in the Illinois Department of Corrections. In a subsequent proceeding the State attempted to bring defendant to trial on the merits of the underlying substantive offense. This effort failed, however, when the trial court dismissed the information on its own motion and ruled that a criminal prosecution would be inappropriate since the State had proceeded on the violation of probation which was based on the same set of facts as the information. The State now appeals from the order dismissing the information (73 Ill.2d R. 604(a)(1)), and defendant appeals from the revocation of his probation; the cases have been consolidated for purposes of review.
On September 17, 1980, defendant pleaded guilty to the offense of felony theft and received a sentence of 2 years probation plus 19 days in the Cook County Department of Corrections. He was arrested on October 7, 1980, and charged with attempted burglary. On November 21, 1980, the State amended the information to include a charge of burglary and also filed a petition to revoke defendant's probation based on the same offense. The petition alleged that defendant knowingly entered a building located at 51 West 149th Street, Harvey, Illinois, with the intent to commit a theft therein. Over defense objections the State was permitted to proceed on the violation of probation, and a hearing was held on March 23, 1981.
At that hearing, Ralph Goldba testified that he is employed as a night operator by the city of Harvey water department. On October 7, 1980, he was working alone in the building noted above when he observed defendant walk toward the building about 2:20 a.m. Defendant looked in the window, then went across to the alley. Mr. Goldba called the police, then heard glass breaking. He called the police again and was advised by the dispatcher that the police had arrived. He went out to the squad car and identified defendant as the person whom he had previously seen. Mr. Goldba stated that there were dim night lights on inside the building, but that the outside was illuminated by vapor lights from the building across the street. He also stated that there is an office in the building which contains a television set, radio equipment and electronic office machines, and that he did not give anyone permission to enter the building that day or to take anything from it.
William Newton, a detective with the Harvey police department, testified that on the date and time in question he responded to a radio dispatch of an attempted break-in at the Harvey pumping station. When he arrived he observed defendant partially inside a window on the side of the building attempting to pry open the interior window with a table leg. He explained that the interior window was actually a plastic shield set back from the wall on brackets which extends about the length of the window. The exterior window was broken, the glass was shattered, and defendant was either sitting on the ledge between the windows or leaning on it. When Officer Newton drove up, defendant ran away, and the officer followed him into an alley until defendant ran between two houses. Less than a minute later he observed defendant standing next to another police officer. The defendant was placed in a police vehicle and returned to the scene.
Defendant's motion for a directed finding of not guilty was denied and defendant then testified that he did not attempt to break into the Harvey pumping station. He stated that about 2:20 a.m. he left his girlfriend's house, walked down the street, passed by an alley and was arrested by the police. He stated that he just met the girl and did not know her last name or her address, but knew that she lived next door to a church which was about 4 blocks away from the pumping station. After he was arrested, he was taken back to the scene, wearing a black tam on his head. Defendant stated that the man, who came to identify him, said that the offender was shorter than defendant. He also stated that Officer Newton, whom he had known previously, told him that if he would tell him about the guns he would let him walk out the door of the police station.
In rebuttal, Officer Newton denied defendant's allegation and stated that at the time of the incident the investigation regarding the recovery of certain weapons had been concluded although not all of the guns were found. Mr. Goldba testified in rebuttal that when he went over to the police car to identify defendant, the latter was not wearing a hat and he asked defendant to put it on. He also stated that he described defendant as tall and lanky, and identified him by his build, the shape of his face, his hat and his clothes. He did not say that the offender was shorter than the defendant.
In announcing his findings at the close of evidence, the trial judge stated that he believed the State's witnesses substantially more than defendant, and that there was "entry within the curtilage of the particular premises by the Defendant when he went in the one window." He then found that the defendant was in violation of probation and entered judgment on the finding. Defendant's motions for a new hearing and arrest of judgment were argued and denied, and defendant was sentenced to a term of 3 years on the prior offense of felony theft. Credit was given for the time spent in custody, but not for those days served satisfactorily on probation prior to his being taken into custody.
On April 29, 1981, before a different trial judge, defendant moved to dismiss the information. Through counsel he contended that a criminal prosecution on the same charges which provided the basis for the probation revocation would amount to double jeopardy. The State argued that the violation of probation is separate from the criminal charge and pointed out that, if a criminal conviction were obtained first, there was nothing to prevent the State from proceeding on the probation revocation on the same charge. The trial court dismissed the information on its own motion stating that a trial on the merits would be inappropriate based on general considerations of due process. In response to a direct question by the prosecutor, the trial court stated that "if the violation is based upon the same facts and same incident and transaction that a new information is based on the State must proceed on one or the other."
On appeal defendant first contends that the evidence presented by the State failed to show the requisite "entry" or "intent" to establish the crime of burglary. Alternatively, he argues that if the evidence is sufficient to show attempted burglary the judgment must be modified and the cause remanded for resentencing.
It is well established that criminal offenses which serve as a basis for the revocation of probation need only be proven by a preponderance of the evidence. (People v. Cooper (1977), 66 Ill.2d 509, 363 N.E.2d 817; Ill. Rev. Stat. 1979, ch. 38, par. 1005-6-4(c).) A reviewing court will not disturb the determination of the trial court in these proceedings unless it is contrary to the manifest weight of the evidence. (People v. Crowell (1973), 53 Ill.2d 447, 292 N.E.2d 721.) The essence of the crime of burglary is an unlawful entry with the requisite intent (People v. Urbana (1959), 18 Ill.2d 81, 163 N.E.2d 511), and these elements may be established by circumstantial evidence and the inferences drawn therefrom. People v. Blakeney (1978), 59 Ill. App.3d 119, 375 N.E.2d 1309.
In the case at bar defendant was discovered sitting or leaning on the ledge between the windows of the building prying at the inner shield with a table leg. The outer window had been broken and defendant was surrounded by shattered glass. The evidence also showed that the building contained estimable property, and when the officer approached, defendant ran away from the scene and was apprehended moments later.
The defendant maintains that this evidence was insufficient to support a finding that he "entered" the building. The trial court found entry "within the curtilage" when defendant went into one window. Technically, "curtilage" refers to the space or ground and building immediately surrounding a dwelling place (Black's Law Dictionary 460 (4th ed. 1968)), an area which has been held insufficient to sustain a burglary conviction. (See People v. Urbana.) In those cases which have upheld burglary convictions, the defendant had penetrated the close of the premises in some manner. (See, e.g., People v. Palmer (1980), 83 Ill. App.3d 732, 404 N.E.2d 853; People v. Songer (1963), 28 Ill.2d 433, 192 N.E.2d 861.) Applying these guidelines to the case at bar, it is apparent that defendant had not entered the building but was still on the outside when his efforts to gain entry were interrupted by the arrival of Officer Newton.
• 1 The evidence did clearly establish, however, that defendant committed the lesser included offense of attempted burglary in that he had taken a substantial step toward knowingly entering the pumping station with the intent to commit a felony or theft therein. (People v. Fletcher (1978), 72 Ill.2d 66, 377 N.E.2d 809; Ill. Rev. Stat. 1979, ch. 38, pars. 8-4, 19-1.) By this action defendant violated the condition of his probation which prohibited him from engaging in criminal conduct during this period. Under these circumstances the trial court properly found that defendant ...