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People v. Mowery





Appeal from the Circuit Court of Livingston County; the Hon. William T. Caisley, Judge, presiding.


Defendant appeals from an order of the circuit court of Livingston County which found him to be in contempt of court for neglecting and refusing to pay court costs and restitution as part of his sentence of probation. He was sentenced to 158 days in jail.

On September 12, 1979, defendant entered a plea of guilty to three counts of burglary and one count of criminal damage to property. He was sentenced to two years' probation on each count, the sentences to run concurrently; and in each case a fine of $50, court costs and restitution were ordered to be paid within 90 days, the amount of restitution to be determined by the Court Services Department. A report from that department indicated that the total fines, costs and restitution was $1,105.55 and that the defendant was unable to meet the deadline for payment. The trial court, on motion of the State, extended the time for payment to September 12, 1980, by an order modifying the probation order of September 12, 1979.

On October 9, 1980, another order of modification was entered. At that time $915.55 remained unpaid on the fines, costs and restitution, and the trial court ordered the defendant to pay $90 per month on that sum commencing November 1, 1980, and each month thereafter.

On December 10, 1980, the State filed a petition to revoke probation, alleging that neither the November 1980 or the December 1980 payments of $90 had been made. Summons was issued and served upon the defendant on December 12, 1980; the hearing was set for January 12, 1981, in the summons; on that date on motion of the State it was continued to March 9, 1981, and notice of the continuance was served upon the defendant. The record does not disclose any hearing on that date but does indicate payments by the defendant of $50 on February 24, 1981; $50 on March 5, 1981; $20 on May 4, 1981; $40 on June 30, 1981; and $40 on August 24, 1981.

On November 20, 1981, while the petition to revoke of December 1980 was still pending, a second petition to revoke probation was filed alleging that the defendant had failed to pay the fine and costs in two of the cases and was delinquent in the amount of restitution in all four cases of $155.55. Defendant appeared pursuant to notice, counsel was appointed for him, and he was arraigned on the petition to revoke.

On January 14, 1982, both petitions were called for hearing. Their prayers for revocation of probation and imposition of sentence were denied by the court which treated the matter as a contempt and sentenced defendant to two days' imprisonment in each case, the sentences to be served concurrently.

Finally, on June 16, 1982, the State filed a petition for rule to show cause against the defendant. The essential allegation of that document was: "That said defendant has neglected and refused to fully comply with said Order. Defendant owes Court costs in the amount of $90.00 and restitution in the amount of $155.55 for a total of $245.55."

The court entered the rule; a warrant was issued for the defendant; and the cause came on for hearing on July 19, 1982. At the commencement of that hearing the trial court began to admonish the defendant, stating that the State had the burden of proof. The State's Attorney interjected, "Judge, I believe this is a rule, we would not have the burden of proof in a rule." The trial court agreed. The court then inquired of the defendant whether he desired counsel and appointed the public defender. A short recess was then taken; the court determined upon reconvening that the defendant had consulted by telephone with counsel but elected to proceed pro se. The court then called upon the defendant to admit or deny the allegations of the rule, and upon defendant's admission of delinquency of $245.55 in costs and restitution, held him in contempt and sentenced him to 158 days in the county jail of Livingston County.

We have indulged in this lengthy recital of the history of this matter in order to demonstrate that both the trial court and the State have extended much charity to the defendant, and we are aware of the exasperation visited upon them by defendant's persistent failure to comply with his probation order. However, we find the proceedings pursuant to the rule to show cause to be fatally flawed.

Defendant first contends that the trial court lacked jurisdiction to enter the contempt order of July 1982. His theory is based upon his interpretation of section 5-6-4(a)(3) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005-6-4(a)(3)). That statute provides in pertinent part:

"Personal service of the petition for violation of probation or the issuance of such warrant, summons or notice shall toll the period of probation, conditional discharge or supervision until the final determination of the charge, and the term of probation, conditional discharge or supervision shall not run until the hearing and disposition of the petition for violation."

He maintains that the State cannot extend the period of probation by filing a petition to revoke and that the tolling provided by the statute means only that the court retains jurisdiction to punish a defendant who has violated the terms of his probation during its original period. As applied to the instant case, he argues that the original term was for two years commencing September 12, 1979, and expiring September 12, 1981; he had served 15 months when the summons on the first petition to revoke was served on December 12, 1980; that this matter was disposed of by denial of the petition on January 14, 1982; that the period of probation continued to run without tolling and expired in September 1981; therefore, the rule of July 1982 was beyond the period and void.

The State, contra, maintains that the language of the statute is plain; that the service of the summons in December 1980 tolled the period of probation after 15 months had been served and nine months remained in its term; that the nine months did not begin to run until the disposition of the petition to revoke in January 1982 and would then expire in October 1982; hence, the rule of July 1982 was timely.

Defendant's theory derives largely from the wording of predecessor statutes. Section 117-3 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1965, ch. 38, par. 117-3) provided:

"(a) When within the period of probation a petition charging a violation of a condition of probation is presented to the court which admitted the person to probation the court may issue a warrant for the arrest of the probationer.

(b) When a warrant is issued the court shall within a reasonable time after the apprehension of the probationer conduct a hearing on the issue of the probation violation. * * *."

"Effective August 11, 1967, the following language was added to section 117-3(a): `The issuance of such warrant shall toll the running of the probation period until the final determination of the charge, but shall not operate to expand the period of probation of any probationer whose probation is not revoked as a result of ...

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