Appeal from the Circuit Court of Champaign County; the Hon.
JUSTICE MILLER DELIVERED THE OPINION OF THE COURT:
• 1 The issue on appeal is whether defendant's inability to conform her conduct to the requirements of the law is a defense in a probation revocation proceeding based upon acts which constitute a criminal offense. We find insanity is not an available defense in probation revocation. Therefore, we affirm the trial court's decision.
On November 30, 1982, Anita Allegri pleaded guilty to the offense of unlawful restraint. (Ill. Rev. Stat. 1981, ch. 38, par. 10-3(a).) The substance of the offense was that she had attempted to take a two-year-old boy away from his father. Allegri was placed on 30 months' probation conditioned upon incarceration in the Champaign County correctional facility as a work-release prisoner. She was ordered not to violate any State laws and to report on a regular basis for psychological counseling. On May 4, 1983, a petition to revoke Allegri's probation was filed. It alleged Allegri had violated a condition of her probation by knowingly detaining 13-year-old William Norman without legal authority. (Ill. Rev. Stat. 1981, ch. 38, par. 10-3(a).) On August 31, 1983, a hearing was held on the petition. The evidence established that on February 20, 1983, Allegri detained Norman at the Lincoln Square Mall in Urbana. She grabbed his wrist and told him to write his name on a piece of paper. In addition, he was told to write "Mind Control." Testimony established that Allegri spoke of lasers, mind control, and feared her thoughts were being broadcast to the community. She also was afraid the police were trying to shoot her. Shortly after her arrest for this incident, she was transferred to a mental health facility.
Allegri established the insanity defense. A psychiatrist testified that, in his opinion, at the time of the second offense Allegri was unable to conform her conduct to the requirements of the law due to the mental disease of paranoid schizophrenia and a paranoid personality disorder. He stated that had she been properly medicated in February she probably would not have committed the acts leading to revocation.
The trial court ruled that because of the nature of probation revocation proceedings, applicability of the insanity defense was not constitutionally mandated. It also determined the defense was not statutorily available. However, it stated that if the defense was available, the State had not met its burden of rebutting it. After a sentencing hearing, held before a different judge, Allegri was sentenced to an additional term of 30 months' probation. She was ordered to cooperate fully with a psychiatrist and the Department of Mental Health.
Defendant argues insanity is an available defense. She contends that the trial court unduly relied upon section 5-2-4 of the Unified Code of Corrections in reaching its decision. (Ill. Rev. Stat. 1981, ch. 38, par. 1005-2-4.) She maintains that since the defense is not specifically made inapplicable to revocation proceedings, it applies. (Ill. Rev. Stat. 1981, ch. 38, par. 6-2(a).) At the outset, we note that the statutes deal with criminal conduct. Section 5-2-4 specifically addresses proceedings after "acquittal" by reason of insanity. (Ill. Rev. Stat. 1981, ch. 38, par. 1005-2-4.) Section 6-2(a) establishes an affirmative defense to "criminal" responsibility. Ill. Rev. Stat. 1981, ch. 38, par. 6-2(a).
• 2 A probation revocation proceeding is not a criminal adjudication. It does not determine guilt or innocence of an accused. (Gagnon v. Scarpelli (1973), 411 U.S. 778, 36 L.Ed.2d 656, 93 S.Ct. 1756; People v. Beard (1973), 15 Ill. App.3d 663, 304 N.E.2d 707, aff'd (1974), 59 Ill.2d 220, 319 N.E.2d 745, cert. denied (1975), 421 U.S. 992, 44 L.Ed.2d 483, 95 S.Ct. 1999.) The issue in a probation revocation proceeding is two-fold: first, whether a probation violation actually occurred, and second, whether the purposes of defendant's probation are being served by his continued liberty. (People v. Dowery (1974), 20 Ill. App.3d 738, 312 N.E.2d 682, aff'd (1975), 62 Ill.2d 200, 206, 340 N.E.2d 529, 531; People v. Davis (1984), 123 Ill. App.3d 349, 462 N.E.2d 824; United States v. Torrez-Flores (7th Cir. 1980), 624 F.2d 776; People v. Beard (1973), 15 Ill. App.3d 663, 304 N.E.2d 707.) Because of the non-criminal nature of the inquiry in revocation proceedings, statutes which address criminal responsibility and proceedings after acquittal are facially inapplicable.
The first step in statutory construction is ascertaining and giving effect to the intention of the legislature. Statutory language is the starting point of the analysis. (People v. Boykin (1983), 94 Ill.2d 138, 445 N.E.2d 1174.) The language of section 5-2-4 does not refer to probation revocation. (Ill. Rev. Stat. 1981, ch. 38, par. 1005-2-4.) Similarly, the language of section 6-2(a) does not refer to non-criminal responsibility. (Ill. Rev. Stat. 1981, ch. 38, par. 6-2(a).) Generally, in giving effect to the intent of the legislature, the court gives the language of the statute involved its ordinary meaning. (Clement v. O'Malley (1981), 95 Ill. App.3d 824, 420 N.E.2d 533, aff'd (1983), 96 Ill.2d 26, 449 N.E.2d 81.) The language is the best indication of intent. Where legislative intent can be gathered from the language, no resort to other sources of information is necessary. (People v. Robinson (1982), 89 Ill.2d 469, 433 N.E.2d 674.) In this case, the trial court carefully considered the statutes. They do not mention the probation revocation circumstance. Considering the result of holding insanity applicable and the language of the statutes, the court decided it was not a statutory defense. We agree.
• 3 If insanity applied as a defense, the trial court would have no statutory authority to modify or revoke probation even though defendant's actions clearly establish a violation of probation and a frustration of its purposes. (Ill. Rev. Stat. 1981, ch. 38, pars. 1005-2-4, 1005-6-4.) Reading insanity into the statutes as a defense to revocation would create a contradictory situation for the trial court. This is not necessary. The language of the statutes excludes revocation. Language is the best evidence of legislative intent. Additionally, the statutes address criminal adjudications — not non-criminal ones. Therefore, the trial court correctly declined to read in insanity as a defense to revocation. Droste v. Kerner (1966), 34 Ill.2d 495, 217 N.E.2d 73, appeal dismissed, cert. denied (1967), 385 U.S. 456, 17 L.Ed.2d 509, 87 S.Ct. 612.
The operative question is whether, in the interests of fundamental fairness, inability to conform one's conduct to the requirements of the law should be a defense to probation revocation. Illinois courts> have not considered this issue. However, insanity is a defense to criminal responsibility. (Ill. Rev. Stat. 1981, ch. 38, par. 6-2(a).) An understanding of the nature of probation is necessary as a preliminary matter. Probation is a privilege — not a right. The trial court has great discretion in granting or denying probation. (People v. Seipel (1969), 108 Ill. App.2d 384, 247 N.E.2d 905, cert. denied (1970), 397 U.S. 1057, 25 L.Ed.2d 675, 90 S.Ct. 1405.) Absent a clear showing of abuse, the decision of the trial court will not be overturned. People v. Sims (1965), 32 Ill.2d 591, 208 N.E.2d 569.
In granting or denying probation, the trial court must balance competing interests. These interests reflect the purpose of probation. (People v. Dowery (1974), 20 Ill. App.3d 738, 312 N.E.2d 682, aff'd (1975), 62 Ill.2d 200, 340 N.E.2d 529.) Rehabilitation of a defendant without incarceration is an important purpose. Equally important is the protection of society from the type of activity that led to defendant's being placed on probation. (People v. Davis (1984), 123 Ill. App.3d 349, 462 N.E.2d 824; People v. McClendon (1970), 130 Ill. App.2d 852, 265 N.E.2d 207.) The defendant, at the probation revocation stage, is always a convicted felon. People v. Henderson (1971), 2 Ill. App.3d 401, 405, 276 N.E.2d 372, 375.
Because of the unique position of defendants at probation revocation proceedings, courts> have held that the process due them is not the same as that due defendants initially standing trial for the substantive offense. In Morrissey v. Brewer (1972), 408 U.S. 471, 480-81, 33 L.Ed.2d 484, 493-94, 92 S.Ct. 2593, 2599-2600, the Supreme Court noted the two-step analysis used in parole revocation. The first step is the factual determination of whether the acts occurred. The second is the determination of how to protect society while furthering the rehabilitative goals of parole. The court held that the parolee's liberty interest justified a measure of due process protection. However, because the parolee's liberty is conditional, the constitutional protection due him was not as strict as that due a nonconvicted person. In Gagnon the Supreme Court equated the liberty interest of a probationer with a parolee. Gagnon v. Scarpelli (1973), 411 U.S. 778, 781-82, 36 L.Ed.2d 656, 661-62, 93 S.Ct. 1756, 1759-60.
At a probation revocation proceeding, therefore, the defendant is in effect awaiting resentencing, not sentencing. The resulting lesser due process protection is reflected in a number of ways. In Gagnon, the court held counsel was not automatically mandated to due process concerns. However, it held that both preliminary determination of probable cause and a hearing on revocation were necessary. (Gagnon v. Scarpelli (1973), 411 U.S. 778, 781-82, 36 L.Ed.2d 656, 661-62, 93 S.Ct. 1756, 1759-60.) The standard of proof is different in probation revocation proceedings. The State need only demonstrate by a preponderance of the evidence that the act giving rise to the petition occurred. (People v. Crowell (1973), 53 Ill.2d 447, 292 N.E.2d 721; People v. Clark (1981), 97 Ill. App.3d 953, 424 N.E.2d 9; Ill. Rev. Stat. 1981, ch. 38, par. 1005-6-4(c).) A defendant may have his probation revoked and subsequently be convicted for the substantive offense without double jeopardy being involved. (People v. Smith (1980), 87 Ill. App.3d 526, 409 N.E.2d 157; People v. Vahle (1978), 60 Ill. App.3d 391, 376 N.E.2d 766.) A defendant need not be indicted, prosecuted, or convicted of the offense forming the basis of the revocation proceeding. (People v. Burkett (1974), 19 Ill. App.3d 410, 311 N.E.2d 748; see also People v. Crowell (1973), 53 Ill.2d 447, 292 N.E.2d 721.) The act giving rise to the petition need not be criminal in nature. (People v. DeWitt (1978), 66 Ill. App.3d 146, 383 N.E.2d 694, aff'd (1979), 78 Ill.2d 82, 397 N.E.2d 1385.) Many of the evidentiary rules do not apply with full force to probation revocation proceedings. People v. Dowery (1974), 20 Ill. App.3d 738, 312 N.E.2d 682; People v. Diercks (1980), 88 Ill. App.3d 1073, 411 N.E.2d 97.
However, because the outcome of the probation revocation proceedings is the curtailment of defendant's liberty, due process requires a fair determination that acts forming the basis of the petition occurred. It also requires that fairness be accorded the defendant during the proceedings. In People v. Pier (1972), 51 Ill.2d 96, 100, 281 N.E.2d 289, 291, the court held that due process demanded a defendant be afforded the same protection in admitting a probation violation as he would in pleading guilty to the substantive offense. If the substantive offense forming the basis of the petition is reversed and the charges dismissed, the revocation order must be vacated. People v. Hannah (1975), 31 Ill. App.3d 1087, 335 N.E.2d 84.
Although Illinois courts> have not addressed the insanity issue, other jurisdictions have. These courts> reason that it is the acts which constitute the violation of probation. Due to the non-criminal nature of the probation revocation proceeding, its differing goals, and defendant's status, fundamental fairness does not require insanity as a defense to revocation based upon those acts. However, these courts> hold fundamental fairness requires the mental state be considered in the second step of the Morrissey analysis. (United States v. O'Sullivan (S.D.N Y 1976), 421 F. Supp. 300; Knight v. Estelle (5th Cir. 1974), 501 F.2d 963, cert. denied (1975), 421 U.S. 1000, 44 L.Ed.2d 668, 95 S.Ct. 2399; State ex rel. Lyons v. Department of Health & Social Services (Wis. App. 1981), 105 Wis.2d 146, 312 N.W.2d 868; People v. Breaux (1980), 101 Cal.App.3d 468, 161 Cal. Rptr. 653; People ex rel. Newcomb v. Metz (1978), 64 App. Div.2d 219, 409 N.Y.S. 2d 554; ...