APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
531 N.E.2d 1142, 177 Ill. App. 3d 174, 126 Ill. Dec. 515 1988.IL.1866
Appeal from the Circuit Court of Macon County; the Hon. Rodney A. Scott, Judge, presiding.
JUSTICE LUND delivered the opinion of the court. KNECHT, J., concurs. PRESIDING JUSTICE McCULLOUGH, Dissenting.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND
In June 1987, defendant pleaded guilty to theft of property exceeding $300 in value in violation of section 16-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 16-1). The circuit court of Macon County sentenced defendant to a term of 30 months' probation, which included a condition that she pay restitution in the sum of $57,000. On April 5, 1988, defendant filed a petition to terminate her probation. Over the State's objection, the court ordered defendant's probation revoked. She was subsequently sentenced to a term of four years' imprisonment, the term to run concurrently with a three-year term imposed by the circuit court of Moultrie County. Defendant appeals her sentence.
On November 7, 1986, defendant was charged by information filed in the circuit court of Macon County with theft over $300. She pleaded guilty at a hearing on June 17, 1987, and was sentenced to a term of probation as above stated. Apparently, defendant was charged under the same facts in the circuit court of Moultrie County with multiple counts of theft over $300 and forgery. (See Ill. Rev. Stat. 1987, ch. 38, par. 17-3.) We do not have the record in that cause before us, but both parties generally agree that the Moultrie County proceedings were based on the same series of acts by defendant. Defendant proceeded to a bench trial in Moultrie County on the forgery counts only. She was convicted of forgery and, in January 1988, she was sentenced to a term of three years' imprisonment. The propriety of the Moultrie County cause is not before us, and we make no determination in that regard.
Defendant filed a petition to terminate her probation in the Macon County cause on April 5, 1988. Although termed a petition to terminate probation, it is in essence a petition to have defendant's probation revoked and a sentence of imprisonment imposed. Defendant alleged that she was unable to comply with the terms and conditions of her probation because of her incarceration. She argued, however, that because the facts underlying the causes in both counties were the same, she could not be sentenced to a term longer than that imposed by the Moultrie County circuit court. The State objected to the filing of the petition by defendant. Nevertheless, following a hearing, the court revoked defendant's probation and sentenced defendant to a term of four years' imprisonment. The sentence was to be served concurrently with the three-year term imposed by Moultrie County. Defendant appeals arguing that principles of comity require the Macon County court to impose a sentence no greater than the three-year sentence imposed by Moultrie County. We need not, however, examine the principles of comity to resolve this matter.
The State argues defendant was without authority to file a petition to revoke probation. We agree. The office of the State's Attorney is vested with the exclusive discretion in the initiation and management of a criminal prosecution. (People ex rel. Daley v. Moran (1983), 94 Ill. 2d 41, 45, 445 N.E.2d 270, 272.) That discretion includes the decision whether to prosecute at all. (Daley, 94 Ill. 2d at 46, 445 N.E.2d at 272.) Section 5-6-4 of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 1005-6-4) governs revocations of probation. Section 5-6-4(c) of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 1005-6-4(c)) places the burden upon the State to go forward with the evidence and prove the violation of probation by the preponderance of the evidence. It makes no provision for a defendant to seek the revocation of her own probation. A court may modify the terms of probation on its own motion, or on motion of the defendant. (See Ill. Rev. Stat. 1987, ch. 38, par. 1005-6-4(f).) However, we are not concerned here with a modification, but a revocation and resulting sentence of imprisonment. There is, therefore, no statutory authority by which defendant may seek to have her probation revoked. Neither can the court, on its own motion, revoke defendant's probation. This would violate the firmly established principle of the separation of powers between the executive and judicial branches of government. (See Daley, 94 Ill. 2d at 46, 445 N.E.2d at 272.) The original probation order provided for restitution. Making a victim whole or partially whole is a legitimate interest of the State's Attorney and could well be a factor in determining whether to proceed with a petition to revoke probation. In this case, the State was aware of and possibly influenced by the existence of the Moultrie County three-year sentence.
Defense counsel stated at oral argument that after the Moultrie County sentencing, he asked the Macon County trial Judge how to proceed and was told to file a petition to "terminate." This petition, as we have said, was actually a motion to revoke. The trial Judge overruled the State's objection to the procedure, in effect, forcing the State to proceed. The court in Daley stated:
"A trial Judge cannot, consistent with the constitutional principle of separation of powers, assume the role of prosecutor and determine which criminal offense shall be charged and thereafter proceed with Disposition of that offense over the State's objection, and the court had no authority to direct that the information be filed and then accept the guilty pleas thereto." (Daley, 94 Ill. 2d at 46, 445 N.E.2d at 272.)
Though the present case involved revocation of probation, we find the statement applicable. No authority is cited giving the right to either the defendant or the trial Judge to initiate revocation proceedings.
The judgment of the circuit court of Macon County, revoking defendant's probation and imposing a sentence of ...