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01/21/88 In Re D.P.

January 21, 1988

IN RE D.P., A MINOR (THE PEOPLE OF THE STATE OF ILLINOIS,


APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

Petitioner-Appellee, v.

D.P., Respondent-Appellant)

519 N.E.2d 32, 165 Ill. App. 3d 346, 116 Ill. Dec. 442 1988.IL.56

Appeal from the Circuit Court of Adams County; the Hon. John C. Wooleyhan, Judge, presiding.

APPELLATE Judges:

JUSTICE LUND delivered the opinion of the court. McCULLOUGH and KNECHT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND

In February 1987, the circuit court of Adams County revoked the probation of the respondent minor D.P. based upon a supplemental petition and, after a Dispositional hearing, ordered D.P. committed to the Department of Corrections (Department), Juvenile Division, for an indeterminate term. The respondent minor appeals, arguing (1) under the law in effect at the time of the offenses for which he was placed on probation, he could not be ordered to pay restitution on unrelated charges which were dismissed; and (2) the circuit court abused its discretion by rejecting the recommendations of the chief probation officer and the State's Attorney for a Disposition of 45 days in the county youth home, rather than a term of imprisonment at the Department. However, we need not discuss these arguments.

On our own motion, we raised the question of whether the trial court had jurisdiction to enter an order revoking probation and committing the respondent to the Department after the fixed period of probation had expired. We find the court was without jurisdiction, and we reverse. A short history of the trial court proceedings is necessary.

Respondent was adjudicated a delinquent and placed on probation for a term of 15 months on July 8, 1984. On February 26, 1985, respondent admitted to the facts alleged in a petition to revoke probation, and, as a result, probation was extended to February 26, 1986. On April 26, 1985, respondent failed to appear for a status hearing, and a bench warrant was issued. On January 7, 1987, a supplemental petition to revoke probation was filed; respondent appeared; and on January 16, 1987, this petition was found to be proved. On February 25, 1987, the trial court revoked probation and ordered respondent committed. This appeal followed thereafter.

The term of probation ordered under section 5-3 of the Juvenile Court Act (Ill. Rev. Stat., 1986 Supp., ch. 37, par. 705-3) must be for a fixed term. (In re T.E. (1981), 85 Ill. 2d 326, 332, 423 N.E.2d 910, 913; In re Sneed (1978), 72 Ill. 2d 326, 334, 381 N.E.2d 272, 275.) Probation of a juvenile may not be extended or revoked without notice, hearing, and a finding that the minor has violated probation. (Sneed, 72 Ill. 2d at 333-34, 381 N.E.2d at 275.) In re Thompson (1980), 79 Ill. 2d 262, 402 N.E.2d 609, stands for the proposition that probation may be revoked on the basis of a probation violation that occurs during the probationary period even though the hearing and finding of the violation occurs after the end of the period. However, in Thompson, the supreme court expressly stated that the trial court retained subject matter jurisdiction because a petition to revoke was filed on the last day of the term of probation. 79 Ill. 2d at 268, 402 N.E.2d at 612-13.

The last paragraph of section 5 -- 3(3)(c) provides:

"The filing of a petition for violation of a condition of probation or of conditional discharge shall toll the period of probation or of conditional discharge until the final determination of the charge, and the term of probation or conditional discharge shall not run until the hearing and Disposition of the petition for violation." (Ill. Rev. Stat., 1986 Supp., ch. 37, par. 705-3(3)(c).)

A period of probation expires at the end of its specific term. Thereafter, nothing exists to revoke. Section 5 -- 3(3)(c) appears to be the exclusive method of tolling a term of probation until a hearing to revoke. In the instant case, the probation period ended on February 26, 1986. No petition to revoke was filed before the probation term ended. The ...


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