People v. Glidden

• Decision Date: 21 November 1975
• Docket Number: No. 75--429,75--429
• Citation: 33 Ill.App.3d 741,338 N.E.2d 204
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Melvin E. GLIDDEN, Jr., Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 204

338 N.E.2d 204

33 Ill.App.3d 741

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Melvin E. GLIDDEN, Jr., Defendant-Appellant.

No. 75--429.

Appellate Court of Illinois, Third District.

Nov. 21, 1975.

Conway & Shoemaker, Aledo, for defendant-appellant.

John D. Sloan, State's Atty., Mercer County, Aledo, F. Stewart Merdian, Asst. State's Atty., for plaintiff-appellee.

STOUDER, Justice.

This is an appeal from an order of the circuit court of Mercer County entering an adjudication of guilt pursuant to the 'first offender' provision of the Cannabis Control Act. Ill.Rev.Stat.1973, ch. 56 1/2, par. 710. In a previous opinion of this court, we dismissed the appeal for want of an appealable order. However, the petition for rehearing pointed out that such an order was in fact added by a supplement to the record, and as a consequence, we have vacated and withdrawn our previous opinion.

On April 18, 1973, the defendant, Melvin E. Glidden, Jr., was charged by complaint in Mercer County with a violation of the Cannabis Control Act. Ill.Rev.Stat.1973, ch. 56 1/2, par. 705(a). Defendant entered a plea of guilty on October 18, 1973 and was sentenced to probation for a period of six months pursuant to the 'first offender' provision. Ill.Rev.Stat.1973, ch. 56 1/2, par. 710.

On November 19, 1973, the defendant was charged in Knox County with another violation of the Cannabis Control Act, Ill.Rev.Stat.1973, ch. 56 1/2, par. 704(b). Defendant entered a plea of guilty to this charge on May 20, 1974.

The record discloses that the defendant's probation officer learned of the Knox County arrest in December, 1973, and the State's Attorney of Mercer County became aware of it one or two weeks after it occurred. No attempt, however, was made to revoke the defendant's Mercer County probation and his six month term expired on April 18, 1974.

On May 28, 1974, the State's Attorney of Mercer County filed a motion not to discharge the defendant from his probation, but instead to enter an adjudication of guilty by reason of the Mercer County violation. On August 8, 1974, the court granted this motion on the ground that the guilty plea in Knox County constituted a violation of the defendant's Mercer County probation.

The briefs of the parties relate to whether the trial court had jurisdiction following the expiration of defendant's probation. Preliminary to this matter is the question whether the order of August 8, 1974 represents a final and appealable order.

It is true that '(t)he final judgment in a criminal case is a sentence,' People v. Becker, 414 Ill. 291, 111 N.E.2d 491, and that in the absence of imposition of sentence, an appeal cannot be entertained. People ex rel. Filkin v. Flessner, 48 Ill.2d 54, 268 N.E.2d 376. However, the purposes of the 'first offender' provision, Ill.Rev.Stat.1973, ch. 56 1/2, par. 710, which often contemplates no penalty beyond an adjudication of guilt, as occurred in the instant appeal, would be thwarted, if we refused to decide this case on its merits.

The Cannabis Control Act was intended to excise marijuana from the Criminal Code by designing appropriate penalties by providing wide discretion in the sentencing court. People v. Taylor, 18 Ill.App.3d 480, 309 N.E.2d 595. Since the order adjudicating defendant's guilt terminates this litigation on the merits, we deem it final and appealable.

Having decided that the record discloses a final and appealable order, we must still determine whether the trial court had jurisdiction to enter an adjudication of guilt following the expiration of defendant's probation pursuant to Ill.Rev.Stat.1973, ch. 56 1/2, par. 710.

Defendant's theory is that the trial court's action constituted a revocation of probation. He contends that the 'first offender' provision, although representing an innovation in sentencing, still requires application of the laws pertaining to probation. See Ill.Rev.Stat.1973, ch. 38, pars. 1005--6--1 to 1005--6--4. Section 5--6--4(a), Ill.Rev.Stat.1973, ch. 38, par. 1005--6--4(a), provides that the issuance of a warrant or order (after a petition is filed charging a violation of probation) tolls the sentence of probation. Defendant accordingly urges that section 5--6--4(a) implies that failure to issue a warrant or summons results in the probation term continuing to run. Finally, defendant relies upon various authorities, which construed prior statutes, for the proposition that an order revoking probation entered after the period of probation has terminated is a nullity, since the court has lost jurisdiction in the case. See, e.g., People v. McMurray, 391 Ill. 271, 62 N.E.2d 793; People v. Cahill, 300 Ill. 279, 133 N.E. 228.

Defendant's reasoning might be persuasive if this appeal involved a petition to revoke probation. But such is not the case in the matter now before us. Rather, we are concerned with a petition to enter an adjudication of guilt, made in connection with the 'first offender' provision. Ill.Rev.Stat.1973, ch. 56 1/2, par. 710. Whether this relief is requested directly by the State thru a petition, or only in response to a motion by the defendant, the result is the same. It would indeed be anomalous to hold jurisdiction was lacking, for if the violation occurred on the last day of defendant's term of probation, the People could only move to enter an adjudication of guilt after the term had expired. We will not require ...