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12/29/95 PEOPLE STATE ILLINOIS v. SUSIE J. FERRELL

December 29, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
SUSIE J. FERRELL, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Woodford County. No. 93CF136. Honorable Richard M. Baner, Judge Presiding.

As Corrected July 25, 1996. Released for Publication January 30, 1996. Petition for Leave to Appeal Denied April 3, 1996.

Honorable Robert J. Steigmann, J., Honorable Robert W. Cook, P.j., Honorable Rita B. Garman, J., Concurring

The opinion of the court was delivered by: Steigmann

The Honorable Justice STEIGMANN delivered the opinion of the court:

In February 1994, defendant, Susie J. Ferrell, pleaded guilty to aggravated battery of a child (720 ILCS 5/12-4.3 (West 1992)). In April 1994, the trial court sentenced her to 3 months in jail and 48 months' probation, subject to various conditions, including that she not engage in any activity with the reasonable potential of causing pregnancy. In December 1994, after a court-mandated pregnancy test indicated that defendant was pregnant, the State filed a petition to revoke her probation. In January 1995, the trial court conducted a hearing on the petition, found that defendant had violated the no-pregnancy condition, and revoked her probation. In May 1995, the trial court conducted a resentencing hearing and sentenced defendant to six years in prison.

Defendant appeals, arguing that (1) probation condition D (the no-pregnancy condition) violates section 5-5-3(k) of the Unified Code of Corrections (Code) (730 ILCS 5/5-5-3(k) (West 1994)); (2) probation conditions D and E (the pregnancy test condition) are not reasonable and violate her fundamental rights; (3) she was denied due process because the no-pregnancy condition was vaguely worded; (4) the trial court's finding that defendant violated the no-pregnancy condition was against the manifest weight of the evidence; and (5) the court abused its discretion by revoking her probation.

Because we agree with defendant's first argument (based on the Code), we need not address her constitutional arguments. We reverse the revocation and sentence and remand with instructions to reinstate her original probation sentence, absent condition D.

I. BACKGROUND

In February 1994, defendant pleaded guilty to aggravated battery of her two-month-old son. In April 1994, the trial court sentenced her to three months in the county jail and 48 months' probation, subject to various conditions. The probation order included the following conditions:

"D. The Defendant may not perform any act, or engage in any activity which has the reasonable potential of causing her to become pregnant.

E. The Defendant shall submit to blood testing for the purpose of determining pregnancy on the following schedule: (1) Today; (2) 14 days from today; (3) 30 days following jail release; (4) Every 60 days thereafter."

In May 1994, defendant filed a motion to reconsider probation conditions D and E, but the trial court denied that motion. No appeal was taken.

In November 1994, a court-mandated pregnancy test indicated that defendant was pregnant. In December 1994, the State filed a petition to revoke her probation, alleging that she had violated the no-pregnancy condition.

In January 1995, the trial court conducted a hearing on the petition to revoke. The court found that defendant had violated the no-pregnancy probation condition and revoked her probation. In May 1995, the court conducted a resentencing hearing and sentenced ...


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