Appeal from the Circuit Court of Cook County; the Hon. Alan
Lane, Judge, presiding.
JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:
The sole issue in this case is whether a person charged with a misdemeanor and found guilty after a bench trial is eligible for supervision under section 5-6-1(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005-6-1(c)), which provides:
"(c) The court may, upon a plea of guilty or a stipulation by the defendant of the facts supporting the charge or a finding of guilt, defer further proceedings and the imposition of a sentence, and enter an order for supervision of the defendant if the defendant is not charged with a felony and having regard for the circumstances of the offense, and the history, character and condition of the offender, the court is of the opinion that:
(1) the offender is not likely to commit further crimes;
(2) the defendant and the public would be best served if the defendant were not to receive a criminal record; and
(3) in the best interests of justice an order of supervision is more appropriate than a sentence otherwise permitted under this Code.
The court shall consider the statement of the prosecuting authority with regard to the standards set forth in this Section."
The trial court, bound by People v. Bodine (1981), 97 Ill. App.3d 42, 422 N.E.2d 256, held that defendant-appellant, Barbara Boykin, was not eligible and sentenced her to six months' misdemeanor probation. We conclude that Bodine erred in holding supervision unavailable and reverse and remand the case to the trial court for reconsideration.
"`Supervision' means a disposition of conditional and revocable release without probationary supervision, but under such conditions and reporting requirements as are imposed by the court, at the successful conclusion of which disposition the defendant is discharged and a judgment dismissing the charges is entered." (Ill. Rev. Stat. 1981, ch. 38, par. 1005-1-21.) Prior to 1976 supervision was commonly given by the trial courts> both to defendants who pled guilty and to those who were found guilty after trial. (Compare People v. Breen (1976), 62 Ill.2d 323, 342 N.E.2d 31.) In 1976 the Illinois Supreme Court in Breen held that the courts> had no authority to place a defendant on supervision and referred the matter to the legislature. The legislature acted promptly. Both houses introduced bills (Senate Bill 1997 and House Bill 3954). The Senate bill, which after being rewritten by committee bore much of the wording of the House bill, was finally adopted as Public Act 79-1334 (1976 Ill. Laws 621) and became law on August 2, 1976. At that time the provision in question read "The court may, upon a stipulation by the defendant of the facts supporting the charge or a finding of guilt, defer further proceedings * * *." Later in 1977 the statute was amended to eliminate a provision that the defendant had to wait three years before petitioning for expungement of the records of his or her arrest. The amendment also added the language "upon a plea of guilty or" to the above-quoted language. (1977 Ill. Laws 3262, 3303.) Trial courts> commonly interpreted the statute as permitting the disposition of supervision after trial and as not requiring a guilty plea or stipulation of guilt (Brady, Major Traffic Charges, 70 Ill. B.J. 292, 298 (1982); ISBA Newsletter Judicial Administration Section, vol. 12, No. 3, editor's note, at 6 (Sept. 1981)), until the fourth district held to the contrary in People v. Bodine (1981), 97 Ill. App.3d 42, 422 N.E.2d 256. The Illinois Supreme Court did not review Bodine but in Fitzsimmons v. Walter (Ill. S.Ct. Nov. 24, 1981) Docket No. 55795, and Fitzsimmons v. Hayton (Ill. S.Ct. Nov. 24, 1981) Docket No. 55796, it entered supervisory orders mandating the trial judge to follow the controlling authority of Bodine.
This court is not bound by the decisions of the fourth district. (Elliott v. Willis (1980), 89 Ill. App.3d 1144, 412 N.E.2d 638.) The State, however, argues that we are bound by the supreme court's supervisory orders in Fitzsimmons. Fitzsimmons was not a decision of the Illinois Supreme Court on the validity of Bodine. All it did was issue an ex parte order to the trial judge to follow Bodine because appellate court decisions are binding on circuit courts> until overturned. Elliott v. Willis (1980), 89 Ill. App.3d 1144, 412 N.E.2d 638; People v. Spahr (1978), 56 Ill. App.3d 434, 371 N.E.2d 1261, appeal denied (1978), 71 Ill.2d 605.
• 1 The State argues that the statute means the trial court may only enter an order of supervision upon (1) a plea of guilty or (2) a stipulation by the defendant of the facts (a) supporting the charge or (b) a finding of guilt. Bodine adopted that construction by rewriting the statute to read "(1) when a defendant pleads guilty, or (2) when a defendant stipulates to either the facts supporting the charge or to the facts supporting a finding of guilt." (97 Ill. App.3d 42, 44, 422 N.E.2d 258.) The defendant contends that the statute means supervision is proper upon (1) a plea of guilty or (2) a stipulation by the defendants of the facts supporting the charge or (3) a finding of guilt. If the statute did in fact read as rewritten by the Bodine court then we would agree with Bodine and the State that the statute is unambiguous and does not permit supervision if the defendant refuses to plead guilty or stipulate to the facts. But it does not. We find that the statute as it is actually written is reasonably susceptible to either interpretation. In other words, it is ambiguous. Since it is ambiguous, it is appropriate for this court to examine the legislative history of the statute to determine the legislative intent. People ex rel. Hanrahan v. White (1972), 52 Ill.2d 70, 285 N.E.2d 129, cert. denied sub nom. Splinter v. Hanrahan (1972), 409 U.S. 1059, 34 L.Ed.2d 511, 93 S.Ct. 562; Acme Fireworks Corp. v. Bibb (1955), 6 Ill.2d 112, 126 N.E.2d 688; Lubezny v. Ball (1944), 322 Ill. App. 78, 53 N.E.2d 988, rev'd on other grounds (1945), 389 Ill. 263, 59 N.E.2d 645; Houghton Mifflin Co. v. Continental Illinois National Bank & Trust Co. (1938), 293 Ill. App. 423, 12 N.E.2d 714; People v. Graves (1922), 224 Ill. App. 235, aff'd (1922), 304 Ill. 20, 136 N.E. 542; 73 Am.Jur.2d Statutes secs. 169-71, 173 (1974).
As already noted the original 1976 Act was actually a compromise between two bills, Senate Bill 1997 and House Bill 3954. The basic difference between them, as the legislature itself saw the problem was that the House required the consent of the prosecutor before the judge could give supervision and the Senate did not. (See for example, 79th Illinois General Assembly, Transcript of House Proceedings, House nonconcurrence of Senate Bill 1997, June 28, 1976, at 129, 131.) It is clear from the discussions that both bills were introduced to codify what the actual practice was prior to the supreme court decision in Breen, which in fact did allow supervision after a trial and finding of guilt.
Senate Bill 1997 read "Whenever a person pleads guilty or is found guilty of any offense * * *." At the third reading of the bill, the then Senator Daley, its sponsor, described it:
"Mr. President and fellow Senators. This bill permits the sentencing of an individual who has pled or is found guilty of a misdemeanor or a violation of the Illinois Vehicle Code to a term of court supervision. The term shall not exceed two years and may include such terms as the court deems appropriate. The discharge and ...