People v. Dixon

• Court: Appellate Court of Illinois
• Writing for the Court: RECHENMACHER; THOMAS J. MORAN, P.J., and DIXON
• Citation: People v. Dixon, 354 N.E.2d 638, 41 Ill.App.3d 910 (Ill. App. 1976)
• Decision Date: 10 September 1976
• Docket Number: No. 75--528,75--528
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jocob DIXON, Defendant-Appellant.

Page 638

354 N.E.2d 638

41 Ill.App.3d 910

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jocob DIXON, Defendant-Appellant.

No. 75--528.

Appellate Court of Illinois, Second District, Second Division.

Sept. 10, 1976.

Ralph Ruebner, Deputy State Appellate Defender, J. Daniel Stewart, Elgin, for defendant-appellant.

Patrick E. Ward, State's Atty., Dixon, Phyllis J. Perko, Ill. State's Atty. Assoc., Martin P. Moltz, Staff Atty., Elgin, for plaintiff-appellee.

RECHENMACHER, Justice.

The defendant was convicted of aggravated battery and on January 23, 1975, was placed on probation for three years by the circuit court of Lee County.

By the terms of his probation the defendant could not leave the State without 'the consent of this court' and was required to report to the probation officer 'at least once each month'.

In April, 1975, the defendant informed the probation officer he intended to leave the State to seek employment down south. The probation officer told him he could not give him permission to leave the State unless and until the defendant could give him a permanent address and place of employment. The defendant replied he did not have either a permanent address or a place of employment at the moment but said he was going to Atlanta, Georgia. The defendant then left Illinois, without permission, and instead of going to Atlanta he actually went to a town in South Carolina. There, he testified, he obtained a job as a welder and worked at this job during May, June and July. In August, 1975, the defendant returned to Lee County and voluntarily contacted Mr. Green, his probation officer.

Upon his return a petition was filed by the State's Attorney for revocation of defendant's probation. At the revocation hearing it was established by the State's evidence that the defendant had left the State of Illinois without permission during May, 1975, and had failed to contact his probation officer during May, June and July, 1975. The defendant testified that he went out-of-state only because he could not find employment locally, that he informed his probation officer that he was going and that he stayed out of trouble and was employed during the time he was gone. His probation violation, he contends, was purely technical and should not be a basis for revocation.

At the hearing his probation officer testified that the defendant had never been cooperative with him and that he had not told him the truth about where he was going when he left the State. Also, at the hearing, the defendant admitted leaving the state without permission and testified that he had not informed the probation officer correctly as to where in the south he intended to go because he was fearful that he might be found if a warrant was to be issued for his arrest. The court determined that the attitude and behavior of the defendant did not justify further consideration for probation and he revoked the defendant's probation and sentenced him to not less than 1 1/2 years nor more than 5 years in the penitentiary with credit for time actually spent in jail but no credit for time on probation not spent in jail.

The defendant in this appeal raises three issues:

(1) His probation should be continued because the defendant committed no crimes while on probation and, in fact, was employed during the time he was absent from the State. Citing the Uniform Code of Corrections, section 5--6--1(a)(1) and (2) (Ill.Rev.Stat.1973, ch. 38, par. 1005--6--1(a)(1) and (2)) the defendant contends there is, therefore, no showing that imprisonment is 'necessary for the protection of the public', or that the defendant is 'in need of correctional treatment that can most effectively be provided by a sentence to imprisonment.' The defendant's violation of his probation is ascribed by him to his frustration in not being able to find employment in the immediate area following his release from periodic imprisonment. Defense counsel suggests that in keeping with the recommendation of the American Bar Association on Standards Relating to Probation (Approved Draft, 1970), p. 57, defendant's probation should not be revoked without consideration of possible further alternatives.

(2) The defendant's second contention, with regard to the minimum sentence imposed by the court, being founded on the case of People v. Bratcher (1975), 29 Ill.App.3d 202, 330 N.E.2d 297, and that case having been reversed by the Illinois Supreme Court in People v. Bratcher (1976) 63 Ill.2d 534, 349 N.E.2d 31, is no longer viable and we do not consider it here.

(3) The defendant also contends he should have credit for all time spent on probation and that the court erred in not allowing such credit and in not making any findings of fact as to the basis of his ruling on that point.

The defendant's argument that his probation should be continued because he did not commit any crimes during his time on probation; that he is not a threat to the public and that he is not in need of...