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January 12, 1995


Appeal from Circuit Court of Champaign County. No. 92CM1997. Honorable Donald R. Parkinson, Judge Presiding.

Released for Publication February 15, 1995. As Corrected March 31, 1995.

Honorable James A. Knecht, P.j., Honorable Frederick S. Green, J., Honorable John T. McCULLOUGH, J., Concurring

The opinion of the court was delivered by: Knecht

PRESIDING JUSTICE KNECHT delivered the opinion of the court:

Defendant Joseph Clark appeals from a decision by the trial court revoking his sentence of conditional discharge and resentencing him to 180 days' incarceration. We affirm.

On November 3, 1992, defendant pleaded guilty to criminal trespass and was sentenced to 12 months' conditional discharge and 30 days' incarceration with credit for time served. Defendant was ordered to pay a probation monitoring fee of $5 per month for 12 months, court costs, a fine of $100, and restitution of $35, all within 180 days. He also was to have no contact with Tracy Clark or her residence. Defendant did not object to the sentence, including the terms involving court-ordered financial obligations.

On May 21, 1993, the State filed a petition to revoke defendant's conditional discharge. The State alleged defendant willfully violated the rules of conditional discharge by failing to pay costs and restitution as ordered. Defendant was served with notice of a hearing on June 21, but failed to appear. The State provided proof of service on the defendant for a hearing on June 21, and the court issued a warrant for defendant's arrest, with bond set at $2,500. Defendant appeared in court on July 15 pursuant to the warrant and was released on a recognizance bond. At his appearance, a hearing on the petition to revoke was set for July 26.

On July 26, defendant failed to appear. Defendant's appointed counsel objected to proceeding and moved for a continuance because he would not agree defendant had been admonished about a trial in absentia. The State presented a copy of defendant's bond sheet, signed by defendant, which advised him a hearing could take place in his absence. The trial court overruled defense counsel's objection and proceeded with the hearing in defendant's absence. The trial court consolidated the hearing with a hearing on a petition for an order of protection against defendant.

In the portion of the hearing concerning the revocation issue, the State called one witness. Kathy Bergstrom, a court clerk, testified that as of that morning, defendant had paid nothing on the probation monitoring fee, court costs, fine, or restitution.

Defense counsel offered no testimony or evidence on defendant's behalf. The trial court took judicial notice of its own records in defendant's proceeding. In the record was defendant's financial affidavit, signed on August 17, 1992, at the time of his arrest for criminal trespass, in support of a petition for appointed counsel. In his affidavit, defendant declared he had been working for one year with a monthly income of $650. Defendant expected his employment to continue. He also declared he had no debts.

After the close of arguments, the court found in favor of the State and against defendant on the revocation issue. From the bench, the trial court found as follows:

"Defendant has, in fact, violated the conditions of his conditional discharge here, by not paying the fine and costs and restitution within the time period that he agreed to, pursuant to his plea agreement and my order that I gave him a copy of in these proceedings November the 3rd, 1992."

The docket entry indicates "the Court enters a finding in favor of the People and against the defendant." The trial court vacated the prior sentence of conditional discharge and sentenced defendant to 180 days' incarceration, with credit for 30 days' time previously served. On July 27, defendant filed motions to reduce sentence, and for a new hearing, alleging the State had failed to show defendant's failure to pay was willful. On August 5, the trial court denied the motions, but amended the credit for time served from 30 days to 102 days. Defendant now appeals.

Before we address the merits of defendant's argument, we first address the State's contention this court lacks subject-matter jurisdiction over this appeal. Specifically, the State contends defendant's notice of appeal was defective in several respects: a vagueness of the relief requested, a difference in relief requested ...

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