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04/26/96 PEOPLE STATE ILLINOIS v. TYRONE SHERROD

April 26, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
TYRONE SHERROD, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois. No. 92-CF-3454. Honorable Angelo F. Pistilli, Judge, Presiding.

Released for Publication May 30, 1996.

Present - Honorable William E. Holdridge, Presiding Justice, Honorable Michael P. Mccuskey, Justice, Honorable Kent Slater, Justice. Presiding Justice Holdridge delivered the opinion: McCUSKEY, J., specially concurring. Slater, J., joins in the special concurrence.

The opinion of the court was delivered by: Holdridge

PRESIDING JUSTICE HOLDRIDGE delivered the opinion:

The defendant, Tyrone Sherrod, was convicted of unlawful possession of a controlled substance. (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1402(b).) He was sentenced to 24 months' probation. The State later filed a petition to revoke probation. After a hearing in absentia, the trial court granted the State's petition and sentenced the defendant to 30 days' conditional discharge and fined him $573.90. His sole contention on appeal is that he was denied due process when the probation revocation hearing was held in his absence. We disagree.

After the defendant was arrested for unlawful possession, he signed a certificate of admonition for trial in absentia (admonition certificate). The admonition certificate, in part, states as follows:

"The defendant is hereby advised that if any time prior to the final disposition of the charge, the defendant escapes from custody or is released on bond and fails to appear in Court when required by the Court, the defendant's failure to appear would constitute a waiver of the defendant's right to confront witnesses against the defendant and trial could proceed in the defendant's absence."

This admonishment substantially complied with section 113-4(e) of the Code of Criminal Procedure of 1963. See Ill. Rev. Stat. 1991, ch. 38, par. 113-4(e).

On December 17, 1992, the defendant pled guilty to the charge. As part of the negotiated plea, he was sentenced to 24 months' probation under the first offender statute of the Controlled Substances Act. (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1410.) The statute states that upon successful completion of such a probation order, a defendant's charge will be dismissed and no conviction will be entered on the record. (See Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1410(f).) However, if the probationer violates a term or condition of probation, the court may enter a judgment on its original finding of guilt and proceed as otherwise provided. Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1410(e).

On March 22, 1993, the State filed a petition to revoke the defendant's probation. In its petition, the State argued, inter alia, that the defendant failed to comply with the condition of probation that he receive a drug evaluation. On September 24, 1993, the defendant appeared in court and was granted a continuance on the hearing on the State's petition until October 15, 1993. On that date, the defendant did not appear in court.

At that time, the State requested that the hearing on the revocation petition be held in absentia. Defense counsel objected on the grounds that the defendant's signed admonition certificate did not give the defendant's consent to proceed on a revocation petition in his absence. The trial court then overruled defense counsel's objection and allowed the hearing to be conducted in absentia. At the hearing, defense counsel presented no evidence. The State then asked the court to take judicial notice that the file in this case did not contain a drug evaluation as required by the defendant's probation order.

The trial court revoked the defendant's probation and issued a warrant for his arrest. On November 2, 1993, the defendant appeared in court and asked the court to quash his arrest warrant. According to defense counsel, the defendant had indicated to her that he did not appear in court on October 15, 1993, because he was sick. The defendant also noted that he had not been able to get a drug evaluation for the past year because he had no income, although he was currently working. The trial court granted the defendant's request to quash arrest and set the matter for sentencing.

On November 19, 1993, the defendant filed a motion for a new hearing on the petition to revoke probation. In his motion, the defendant alleged that the court erred in allowing the State to proceed on the petition in the defendant's absence since the defendant was never admonished about that possibility.

On January 13, 1994, a hearing was held on the defendant's motion and on sentencing. The trial court determined that the admonition certificate signed by the defendant before he pled guilty remained in effect throughout his term of probation and was sufficient notice to the defendant that the State could proceed on its petition in his absence. The ...


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