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01/25/88 the People of the State of v. Clarence Carter

January 25, 1988





518 N.E.2d 1068, 165 Ill. App. 3d 169, 116 Ill. Dec. 247 1988.IL.73

Appeal from the Circuit Court of Lake County; the Hon. Fred A. Geiger, Judge, presiding.


JUSTICE WOODWARD delivered the opinion of the court. NASH and REINHARD, JJ., concur.


Defendant, Clarence Carter, appeals the order of the circuit court revoking his probation and sentencing him to four concurrent three-year terms of imprisonment. Defendant argues that the court's order was void for lack of jurisdiction and that, in the alternative, the court abused its discretion in sentencing him to the maximum term of imprisonment.

Defendant initially pleaded guilty on April 21, 1986, to two counts of theft (Ill. Rev. Stat. 1985, ch. 38, par. 16-1) and one count of retail theft (Ill. Rev. Stat. 1985, ch. 38, par. 16A-3), pursuant to three separate informations. Defendant elected to be treated as an addict pursuant to the provisions of section 23 of the Alcoholism and Substance Abuse Act (the Act) (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 6323). Prior to sentencing, another information was filed charging defendant with retail theft and unlawful possession of cannabis (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 704(b)). Defendant pleaded guilty to these charges, and they were consolidated with the previous charges for purposes of electing treatment as an addict.

On June 11, 1986, the court sentenced defendant to 30 months' probation on each of the four informations, with the condition that he obtain inpatient drug therapy through Treatment Alternatives to Street Crimes . While awaiting an opening in a TASC inpatient program, defendant attended an outpatient program.

On July 7, 1986, the State filed four separate petitions to revoke probation. The petitions alleged that defendant had committed retail theft on June 3, 1986. After being admonished by the court, defendant admitted the allegations of the petitions. The factual basis for the plea, as given by the prosecutor, recited that on June 3, 1986, defendant took a Mepp's Killer Kit from a Venture store and walked past the cash registers without paying for it. However, a memorandum from the Department of Court Services to the Lake County State's Attorney's office indicated that defendant was arrested on June 23, 1986, and the attendant nontraffic complaint states the date of the offense as June 23, 1986. The information on that charge was sworn to on June 30, 1986, and filed July 1, 1986. Also, a letter from TASC notifying the court of defendant's failure to comply with the rules of the program indicated that he was arrested on June 23, 1986. The court found the factual basis sufficient and revoked defendant's probation.

At the sentencing hearing on July 30, 1986, both the prosecutor and defense counsel recommended that defendant's probation be continued and that defendant be placed in an inpatient TASC program, subject to being held in custody until an opening in such a program occurred. The court, however, found that the likelihood of defendant's complying with the terms of probation was doubtful and sentenced him to concurrent terms of three years in the Department of Corrections on each of the four informations.

Defendant filed a motion to reconsider. At the hearing, the State did not object to the petition. The prosecutor stated that "possibly the opportunity to get him off the streets and into an inpatient facility may be the way to go." The court denied the motion, stating that "[the] penal system will certainly get him off of drugs, it is in effect an inpatient treatment program." Defendant filed a timely notice of appeal.

Defendant first contends that the trial court was without jurisdiction to enter the order revoking his probation, since the petition to revoke and the prosecutor's recitation of the factual basis both stated that the date of the violation was June 3, 1986. This date was before the defendant's term of probation began. The State responds that other sources show the date of the offense to have been June 23, 1986, and that the court and defense counsel were aware of the actual date.

Subject matter jurisdiction over a defendant on probation lasts only for the duration of the probation. (People v. Martinez (1986), 150 Ill. App. 3d 516, 517; People v. Randolph (1981), 98 Ill. App. 3d 696, 699, cert. denied (1982), 459 U.S. 857, 74 L. Ed. 2d 110, 103 S. Ct. 128.) Furthermore, "it is axiomatic that a defendant must be on probation in order to have his probation revoked and that the acts alleged in the petition to revoke must have occurred during the probation period." People v. Speight (1979), 72 Ill. App. 3d 203, 215.

In the instant case, the State argues that the act alleged in the petition did in fact occur during the probation period, although the petition itself contained the June 3 date. Normally, a typographical error in the date of the offense is a purely formal defect which can be cured by amendment. (People v. Koczur (1968), 100 Ill. App. 2d 481 (slip op. at 4) (abstract of opinion); People v. Bradley (1966), 70 Ill. App. 2d 281, 288.) In People v. Price (1971), 132 Ill. App. 2d 733, the court found that defendant was not prejudiced by a misstatement of the date in the indictment where the defense had access to the State's entire file, including grand jury testimony indicating the correct date, and defendant admitted on cross-examination that he was "picked up" for the offense during December 1968, rather than January 1968, as alleged in the indictment. Thus, the incorrect date was merely a formal defect, subject to amendment. (Price, 132 Ill. App. 2d at 734-35.) Furthermore, the pleading requirements for a petition to revoke probation are less stringent than those for an indictment or information. (People v. Monick (1977), 51 Ill. App. 3d 783, 787.) Formal defects in a charging instrument are waived if ...

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