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04/11/89 the People of the State of v. Alfred Moaton

April 11, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

ALFRED MOATON, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

537 N.E.2d 989, 182 Ill. App. 3d 161, 130 Ill. Dec. 660 1989.IL.499

Appeal from the Circuit Court of Cook County; the Hon. Cornelius J. Houtsma, Jr., Judge, presiding.

APPELLATE Judges:

JUSTICE SCARIANO delivered the opinion of the court. BILANDIC, P.J., and EGAN,* J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCARIANO

On June 15, 1987, defendant pleaded guilty to two counts of forgery and was sentenced to 30 months' probation. Approximately five weeks later, i.e., on July 24, 1987, the People petitioned to have defendant's probation revoked, charging that defendant had violated all three conditions thereof. A hearing was held on July 29, 1987, after which the court found defendant guilty as charged and sentenced him to five years in the custody of the Illinois Department of Corrections. Defendant now appeals and raises the following issues: (1) whether it was an abuse of discretion for the court to terminate his probation, and (2) whether he is entitled to 39 days time served on probation to be credited against his sentence for imprisonment.

The terms of defendant's probation were as follows. He was to meet with probation officer McCann five times each week; more specifically, he was to meet with McCann twice weekly at McCann's office, two nights per week at defendant's home for a curfew check, and once a week at a community service site. His curfew required defendant to be at home between the hours of 7 p.m. and 7 a.m. Until the community service began, defendant was to make that meeting at McCann's office. Defendant was also required to make certain restitution payments beginning in June of 1987.

According to the record, defendant failed to appear for the requisite meetings on June 22, June 25, June 29, July 2, July 6, July 8, July 10, July 13, July 16, July 17, and July 20. In addition, the record discloses that defendant was frequently not in when McCann attempted home visits; the officer found defendant to be absent on June 22, June 30, July 1, July 4, July 12, July 13, July 17, July 22, and July 23. During the home visits of July 12 and July 22, defendant was on the premises surrounding the home, but outside of the house, which is considered to be a probation violation. On June 30, McCann telephoned defendant's residence and was informed by defendant's godfather that defendant was not at home. Defendant also failed to make any restitution payments.

On June 22, 1987, McCann telephoned defendant, and in that conversation, defendant informed the officer that he was having difficulty getting to the probation office. Other than on this one instance, initiated by McCann, defendant never bothered to explain to the officer why he had missed his visits.

Defendant admitted that he reported to the probation office only three times, claiming that the reason for his failure to meet the requirement was that he did not have the money to make the trip. Defendant was unemployed and not yet on public aid; he lived with his godfather and helped in his godfather's ice-cream business. The probation office was located at 2659 South California Avenue in Chicago; defendant resided at 15803 Paulina Avenue in Harvey. Thus, defendant was required to take some form of public transportation in order to attend the meetings.

Defendant testified that he was never told that in order to comply with the curfew requirement he had to remain inside his home. He further stated that he had an unfriendly relationship with his godfather's girlfriend, and that because of this animosity, she lied to McCann when she told him that defendant was at "the store" at the time of his July 13, 1987, curfew check. Defendant also stated that he was at home on each day that his probation officer came by. In addition, defendant informed the court that while he previously was unable to make restitution payments, his pubic aid payments had commenced and he would now be able to begin to make those payments and his weekly meetings with his probation officer.

As already noted, the Judge found defendant guilty of each of the matters alleged in the People's petition, revoked defendant's probation, and sentenced him to five years in prison. Pursuant to defense counsel's request, defendant was credited with 154 days time served, 105 of those days having been spent in Cook County jail prior to being placed on probation and 49 days as credit for the time he was held in custody prior to being committed to the Department of Corrections. Inasmuch as counsel did not request it, defendant was not at this time given credit for the 39 days he spent on probation.

Defendant argues that it was an abuse of discretion for the court to terminate his probation, contending that pursuant to section 5-6-2(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005-6-2(c)), a court may terminate probation only as follows:

"The court may at any time terminate probation or conditional discharge if warranted by the conduct of the offender and the ends of Justice . . .." (Ill. ...


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