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12/30/87 the People of the State of v. James A. Bertalot

December 30, 1987





518 N.E.2d 467, 164 Ill. App. 3d 89, 115 Ill. Dec. 942 1987.IL.1951

Appeal from the Circuit Court of Bureau County; the Hon. C. Howard Wampler, Judge, presiding.


JUSTICE STOUDER delivered the opinion of the court. BARRY, P.J., and SCOTT, J., concur.


The defendant, James A. Bertalot, appeals from the judgment of the circuit court of Bureau County, which held him in indirect criminal contempt for the failure to complete the public service condition of his probation. After the expiration of the probation term, the State filed a petition for a rule to show cause asking for a finding of contempt for the failure to complete the work. The rule to show cause was issued, Bertalot was found to be in contempt, and the court sentenced him to six months' incarceration.

On September 24, 1984, Bertalot entered a negotiated plea on a one-count indictment for felony theft. The court accepted the plea and Bertalot was placed on two years' probation. One condition of the probation was that he complete 40 hours of public service work prior to April 1, 1985.

On February 22, 1985, Bertalot's probation officer contacted the Spring Valley police department to set up his public service work. That same day, Bertalot's probation officer instructed him to report to the police department. To the probation officer's knowledge, Bertalot failed to report that day.

Bertalot was next contacted on March 29, 1985. He stated he had not completed any of his public service work. He made the same statement on both April 19, 1985, and in May 1985. Bertalot told the probation officer that he never reported to the police due to a lack of transportation; however, his probation officer testified that on one occasion, Bertalot stated he had walked the distance previously after a night at a Spring Valley bar. The trial court then found Bertalot to be in wilful contempt for failing to complete the public service work and sentenced him to six months' incarceration.

On appeal, Bertalot contends (1) that the trial court lacked jurisdiction to enter the contempt order because his probation period had expired prior to the filing of the rule to show cause, (2) that he was prejudiced because the State unfairly and unreasonably delayed the initiation of the contempt proceedings, (3) that the State failed to prove beyond a reasonable doubt that he was in indirect criminal contempt of the probation condition, and (4) that if the criminal contempt order is valid, that the case be remanded for resentencing because the trial court failed to afford him the opportunity to present any evidence in mitigation.

This case affords us the opportunity to establish some logical guidelines for the use of contempt and/or revocation proceedings when a defendant has allegedly violated some condition of his probation. These guidelines will serve to make available to the proper authorities the procedures to enforce the conditions of a defendant's probation while at the same time allow the defendant to be secure in the knowledge that once his probation is completed, he need not continually look over his shoulder.

Under section 5-5-3 of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1985, ch. 38, par. 1005-5-3), the legislature has made certain Dispositions available, either alone or in combination, for felonies and misdemeanors. Unless the felony falls within the category provided for elsewhere in the section, the following sentencing alternatives are available: (1) a period of probation; (2) a term of periodic imprisonment; (3) a term of conditional discharge; (4) a term of imprisonment; (5) a repair or clean up order; (6) a fine; or (7) a restitution order. Any one of these may be used as the sole Disposition in the appropriate case.

When a court sentences a defendant by imposing a fine, the legislature has seen fit to provide the court with the mechanism to enforce the sentence by enacting the civil contempt provisions of the Code. (Ill. Rev. Stat. 1985, ch. 38, pars. 1005-9-3(a), (b).) In such a case, the defendant may be imprisoned for the civil contempt and released upon payment of the fine. This procedure can be used at any time until the fine is paid.

This procedure, i.e., statutory civil contempt, can also be used when the fine is made part of the terms of probation. It is of no consequence whether the money to be paid is a fine or in the form of costs and restitution. (People v. Mowery (1983), 116 Ill. App. 3d 695, 452 N.E.2d 363.) As the Mowery court pointed out, "we see no qualitative difference between the two, especially since costs and ...

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