People v. Dawes
| Decision Date | 22 May 1972 |
| Docket Number | No. 44326,44326 |
| Citation | 284 N.E.2d 629,52 Ill.2d 121 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Respondent, v. Hubert A. DAWES, Defendant-Petitioner. |
| Court | Illinois Supreme Court |
Gerald W. Getty, Public Defender, Chicago (James N. Gramenos, Asst. Public Defender, of counsel), for petitioner.
William J. Scott, Atty. Gen., Springfield, and Edward V. Hanrahan, State's Atty., Chicago (James B. Zagel, Asst. Atty. Gen., and Elmer C. Kissane and Stephen R. Kramer, Asst. State's Attys., of counsel), for the People.
On May 21, 1959, defendant pleaded guilty to the charge of obtaining money and goods by means of a confidence game. He was placed on probation for a period of five years and ordered to make restitution. On May 20, 1964, on petition of the probation officer, probation was extended for a period of two years. On May 20, 1966, a rule was entered to show cause why the defendant's probation should not be revoked. A hearing on this rule to show cause was continued from time to time and on July 9, 1968, the circuit court of Cook County entered an order revoking the defendant's probation and sentencing him to the Illinois State Penitentiary for a term of from one to six years on his original plea of guilty. The appellate court affirmed the conviction (People v. Dawes (Ill.App.1971), 270 N.E.2d 214), and this court granted leave to appeal.
The defendant first contends that the trial court lost jurisdiction of the case and could not revoke defendant's probation because the probation period as extended had expired on May 20, 1966, and probation was not revoked until July 98 1968. Defendant's chronology of events indicates that there was a lapse between the termination of the probationary period as extended on May 20, 1966, and October 3, 1967, on which date, defendant states, the probation department complained that defendant had failed to pay the balance of restitution and a warrant was issued for his arrest. The proper sequence as revealed by the record indicates that this lapse did not in fact occur. On May 20, 1966, at the instance of the State's Attorney, a rule to show cause why probation should not be revoked and terminated was entered and a hearing on the rule was continued until June 9, 1966. On the latter date, by agreement of defendant, his counsel, and the State's Attorney, hearing on the rule was continued until December 1, 1966. On that date, again by agreement of defendant, his counsel, and the State's Attorney, the hearing was continued until March 1, 1967, on which date defendant moved the court for a hearing on restitution and the court, on motion of the defendant, continued the cause until March 31, 1967. The record does not indicate the nature of the motion on restitution. There were three more continuances, the last one being until October 3, 1967. On this date counsel for defendant appeared but the defendant did not appear. The probation department thereupon filed an application for a warrant for the defendant's arrest for failure to appear on such date. This is the document which the defendant now contends instituted the revocation proceeding. We do not agree.
At the time of the entry of the original rule to show cause on May 20, 1966, the statute pertaining to revocation of probation (Ill.Rev.Stat.1965, ch. 38, par. 117--3) provided: * * *'
Effective August 11, 1967, the following language was added to section 117--3(a): 'The issuance of such warrant shall toll the running of the probation period until the final determination of the charge, but shall not operate to expand the period of probation of any probationer whose probation is not revoked as a result of the hearing.' Ill.Rev.Stat.1967, ch. 38, par. 117--3(a).
We need not decide whether under the 1967 amendment it is necessary for a warrant to issue before the running of the probation period is tolled. The amendment was not in effect at the time that the original order on the rule to show cause was entered.
Within the period of probation the State's Attorney had requested and the court had entered a rule on the defendant to show cause why the probation should not be terminated. Both the defendant and his counsel were in court at that time. Being before the court in the revocation proceeding and subject to the jurisdiction of the court, it was not necessary that a warrant be issued to apprehend the defendant (22 C.J.S. Criminal Law § 404). The statute (section 117--3(b)) required that within a reasonable time after the apprehension of the probationer the court must conduct a hearing on the issue of the probation revocation. On May 20, 1966, the defendant and his counsel were before the court and the court set the rule to show cause for hearing on June 9, 1966. The many continuances thereafter were agreed to and in some instances...
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People v. Rodriguez
...v. State (Ind.Ct.App.1982) 437 N.E.2d 137, 139-140; People v. Dawes (1971) 132 Ill.App.2d 435, 270 N.E.2d 214, 217 affirmed (1972) 52 Ill.2d 121, 284 N.E.2d 629; State v. Carter (1980) 5 Kan.App.2d 201, 614 P.2d 1007, 1012; State v. Maier, supra, 423 A.2d 235, 239; People v. Williams (1975)......
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