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04/19/88 the People of the State of v. Robert J. Klovstad

April 19, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

ROBERT J. KLOVSTAD, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

522 N.E.2d 803, 168 Ill. App. 3d 444, 119 Ill. Dec. 141 1988.IL.559

Appeal from the Circuit Court of Du Page County; the Hon. Charles E. Ruth and the Hon. Thomas C. Callum, Judges, presiding.

APPELLATE Judges:

JUSTICE INGLIS delivered the opinion of the court. NASH and HOPF, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE INGLIS

Defendant, Robert Klovtad, was sentenced to a one-year term of probation after entering a plea of guilty to the offense of driving while under the influence of alcohol (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 11-501(a)). Defendant's probation was revoked on April 15, 1986, during an in absentia proceeding at which neither defendant nor his attorney was present. Defendant was sentenced to a 90-day term of imprisonment and appeals after the trial court denied his motion to vacate the order revoking his probation. We affirm.

In its petition to revoke defendant's probation, the State alleged that defendant violated the conditions of his probation by failing to appear at the probation department office in September, October, and November 1985, and by changing employment without the permission of the probation department. On March 25, 1986, the trial court held a status hearing on the petition. Defendant informed the court that his attorney, Roland Cassata, was on trial in another matter. The trial court advised defendant, also an attorney, that he could represent himself if he so desired. After defendant indicated that he understood, the court set a hearing date on the petition for April 15, 1986, at 9 a.m. Defendant, having previously missed many court dates, was admonished by the court that the matter would be heard on the scheduled date whether defendant's attorney was present or not. The court further advised defendant that if defendant failed to appear, the hearing would take place in his absence. Defendant acknowledged that he understood both warnings.

On April 15, 1986, neither defendant nor his attorney appeared for the hearing. The court held the matter over and, after calling the case a second time and noting for the record defendant's previous admonition about a hearing in absentia, permitted the hearing to go forward in the absence of defendant and defendant's counsel. The State's sole witness was defendant's probation officer, Carmen Young. Young testified that she had reviewed the probation department file concerning defendant. Based upon the notes of defendant's previous probation officer, Dennis Gilmore, and conversations with Gilmore, Young testified that defendant failed to appear in the probation department offices in September, October, and November 1985 and was not excused from appearing during those months. Young further testified that defendant told her that he was working at a law office located at 7 South Dearborn Street in Chicago. However, when Young contacted the law office in October 1985, the receptionist informed her that defendant was no longer employed there. Defendant subsequently told Young that he was no longer working at that office. According to Young, defendant never sought permission from the probation department to change his employment. The trial Judge found that defendant had violated the terms of his probation, revoked defendant's probation, sentenced him to 90 days' imprisonment, and issued a bench warrant for his arrest on April 15, 1986.

Defendant was arrested on October 6, 1986. On October 8, 1986, defendant, through his attorney, filed a motion to vacate the order revoking his probation and sought a new hearing on the petition to revoke. At the subsequent hearing on defendant's motion, defendant testified that he was unable to attend the April 15, 1986, hearing because he became ill with the flu the previous night and was vomiting on the morning of the hearing. Defendant testified that he contacted his attorney at approximately 7 or 8 a.m. and advised him that he was ill and could not make it to court. Defendant stated that he also attempted to reach his probation officer by telephone that morning, but she was not in her office. Defendant further stated that he attempted to call the court, but could not get through. Defendant then fell asleep and realized when he awoke that his case had probably already been called.

Upon further questioning, defendant acknowledged an arrangement with his attorney providing that on certain occasions his attorney would not appear on his behalf because defendant was a practicing lawyer and was perfectly capable of representing himself for certain things. Defendant stated that the hearing on the "27th of March [presumed to be the March 25, 1986, status hearing]" was one of those occasions on which defendant planned to represent himself, but the court would not allow him to argue without his attorney and set the April 15, 1986, hearing. Defendant and his attorney then engaged in the following colloquy:

"Q. I advised you I would be on trial on April 15th, and you intended to appear yourself on that date; is that correct?

A. No.

Q. On April 15th --

A. No. No. That's not correct. You were going to be there, but you ...


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