Appeal from the Circuit Court of Madison County; the Hon.
Thomas Hildebrand, Judge, presiding.
JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:
The defendant, Randy Hoga, pleaded guilty before the Honorable Lola Maddox to unlawful use of weapons in violation of section 24-1(a)(3) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 24-1(a)(3)), and on July 7, 1981, was placed on court supervision. On July 30, 1981, a petition to revoke supervision was filed, alleging that defendant had committed the offense of aggravated assault. On September 25, 1981, notice was sent that a hearing on the petition to revoke supervision was scheduled for October 2, 1981, before the Honorable Thomas Hildebrand. On October 1, 1981, defendant filed a "Perition [sic] and Affidavit for Change of Venue" which alleged in conclusory terms that Judge Hildebrand was prejudiced against defendant and prayed that another judge conduct the hearing. Subsequent to the hearing at which defendant was found by a preponderance of the evidence to have violated supervision and sentenced to 364 days' imprisonment, the court denied defendant's motion for change of venue on the basis that a sufficient showing for granting the motion was not made and that the motion was filed prior to defendant's attorney entering his appearance of record. On appeal, the defendant contends, (1) that the court improperly denied his motion for substitution of judges; (2) that the State failed to prove that he violated supervision; (3) that the charge of violation of supervision does not state an offense; and (4) that the sentence was improper.
• 1, 2 In support of his first contention, that the court erred in denying his motion for substitution of judge, the defendant relies upon the provisions of section 114-5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 114-5). Section 114-5(a) provides for automatic substitution of judges upon motion of a defendant filed within 10 days after a cause is placed on the trial call of the judge. The courts> have uniformly held that this section is not applicable to proceedings to revoke probation. (People v. Malone (1976), 41 Ill. App.3d 914, 354 N.E.2d 911.) The rationale of Malone is equally applicable to a petition for revocation of supervision; therefore, we conclude that section 114-5(a) of the Code does not apply to proceedings to revoke supervision. With respect to section 114-5(c) of the Code, providing for a substitution of judge for cause, defendant's motion was conclusory and failed to state any specific allegations of prejudice, such as when the alleged prejudice of the trial judge arose or when the alleged prejudice came to defendant's knowledge; therefore, the motion was properly denied. People v. Spurlark (1978), 67 Ill. App.3d 186, 384 N.E.2d 767.
Next, defendant contends that the evidence does not establish that the aggravated assault occurred on or about "a public way, public property, or public place of accommodation or amusement." (Ill. Rev. Stat. 1979, ch. 38, par. 12-2(a)(9).) The information charged that the offense occurred while defendant was standing on Route 159. At the hearing, Robert Hulsey testified that on July 18, 1981, at 9 a.m. he was visiting his daughter in Collinsville, Illinois, when he stopped at the mailbox. Mr. Hulsey wanted to proceed onto Route 159 when defendant blocked the path. The mailbox is on the property line facing toward Route 159. After Mr. Hulsey went to the mailbox he attempted to get back into his automobile. Defendant then pushed the car door, which hit Mr. Hulsey in the back. Mr. Hulsey was able to get into his automobile and lock the door. Defendant beat on the window and threatened "to get" Mr. Hulsey. Defendant was standing in the gutter of Route 159, a State highway, and blocking the driveway to Mr. Hulsey's daughter's business. Defendant was shouting and making threatening gestures. Mr. Hulsey testified without obligation that on one previous occasion, defendant attacked him with an axe. Defendant ceased threatening Mr. Hulsey when Dale Hoga called defendant to the house.
Defendant testified that on July 18, 1981, he and Richard Shane went fishing at Barth's Lake at 7 a.m. and returned at 3:30 p.m. Barth's Lake sold defendant a badge and charged defendant a dollar for each of his two fishing poles. Defendant could not remember on which highway the lake was located. Defendant denied threatening or blocking Mr. Hulsey's path.
Richard Shane testified that on July 18, 1981, he went fishing with defendant. He met defendant at 6:15 a.m. at defendant's house and returned home at approximately 3:30 p.m. Mr. Shane identified the ticket-badge which Barth's Lake sold him. Defendant drove; therefore, Mr. Shane was not sure on which highway Barth's Lake was located. Defendant had one fishing pole, a rod and reel combination.
The court found that the State had not proved that defendant had violated his supervision beyond a reasonable doubt but had proved a violation by a preponderance of the evidence. The court found that the State's witness was more credible that defendant's witnesses. In support of that finding the court stated that the badge-tickets did not have a time noted on them, that defendant could have gone fishing after the incident, and that there were conflicts in the testimony of defendant's witnesses.
• 3, 4 In order to establish a violation of supervision, the State must prove the violation by a preponderance of the evidence. (Ill. Rev. Stat. 1979, ch. 38, par. 1005-6-4(c).) It is the function of the trier of fact to determine the credibility of the witnesses, the weight to be given to their testimony and the inferences to be drawn from the evidence. (People v. Akis (1976), 63 Ill.2d 296, 347 N.E.2d 733). Mr. Hulsey testified that defendant was standing in the gutter of State Route 159 while he threatened Mr. Hulsey, who was in his automobile. The evidence was sufficient to establish that Mr. Hulsey was "on or about a public way" at the time he was assaulted and that defendant was, in fact, on the public way. Based on the record on appeal, we conclude that the finding of violation of supervision is not against the manifest weight of the evidence.
• 5, 6 Defendant further contends that the charge of violation of supervision does not state an offense. The charge stated:
"[O]n the 18th day of July, 1981, the defendant committed the offense of Aggravated Assault in violation of the Illinois Revised Statutes, Chapter 38, Paragraph 12-2, in that he shook his fist at Robert Hulsey and threatened him with bodily harm while said defendant was standing on Route 159 in front of Robert Hulsey's residence, 81-ECM-773 [sic] thereby placing Robert Hulsey in reasonable apprehension of receiving a battery."
The charge fails to state that Route 159 is a public way and fails to specify the subsection of section 12-2 which defendant was alleged to have violated; however, the allegation in the petition to revoke was not objected to in the trial court. When attacked for the first time on appeal, a complaint is sufficient if it apprised the accused of the precise offense charged with sufficient specificity to prepare his defense and allows pleading a resulting conviction as a bar to future prosecution arising out of the same conduct. (People v. Pujoue (1975), 61 Ill.2d 335, 335 N.E.2d 437.) When the allegation of violation of supervision is tested against the standard of Pujoue, it can successfully withstand attack for the first time on appeal.
• 7 Immediately after revoking supervision, the court entered into the sentencing phase of the proceedings. No presentence report was prepared because none was required. (Ill. Rev. Stat. 1979, ch. 38, par. 1005-3-1.) In sentencing the defendant, the court stated:
"Now, the question at this point in time becomes one of what to do with the Defendant. Mr. Hoga has pending at this point in time aggravated assault which resulted a hung jury [sic] Tuesday night, 81-CCM-116. He has this pending aggravated assault charge which was the basis for the Petition to Revoke 81-ECM-773, and Mr. Hoga — Randy Hoga has exhibited in his past dealings with this Court an absolute disregard for orders not only of this Court but of every judge in this County who has had occasion to deal with the Hoga family.
There comes a time, boys and girls, when the rule of law must be followed. And there comes a point in time when talking doesn't do any good. The handwriting, Mr. Hoga, has been on the wall for a long time that you should keep a low profile and not get involved in any of these rather scurrilous activities. But mindless of the constraints imposed upon you by this Court, subtle hints dropped, the fact that you're already out on appeal bond on the battery case that Judge Ferguson sentenced you on last year, you just don't seem to get the picture, Mr. Hoga. And I figure that one of two things is going to happen. Eventually you're going to get the hint or — three things. That's the outside possibility, get the hint. Or you will go to jail and do ...