People v. Slack

• Decision Date: 03 March 1980
• Docket Number: No. 79-209,79-209
• Citation: 37 Ill.Dec. 385,402 N.E.2d 275,81 Ill.App.3d 557
• Court: United States Appellate Court of Illinois
• Parties: , 37 Ill.Dec. 385 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Berl SLACK, Jr., Defendant-Appellant.

Page 275

402 N.E.2d 275

81 Ill.App.3d 557, 37 Ill.Dec. 385

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Berl SLACK, Jr., Defendant-Appellant.

No. 79-209.

Appellate Court of Illinois, Fifth District.

March 3, 1980.

John H. Reid, Deputy Defender, and E. William Hutton, Asst. State App. Defender, Fifth Judicial Dist., Mount Vernon, for defendant-appellant.

Nicholas G. Byron, State's Atty., Edwardsville, William S. Zale, Acting Deputy Director and Raymond F. Buckley, Jr., Staff Atty., State's Attys. App. Service Commission, Mount Vernon, for plaintiff-appellee.

SPOMER, Justice:

Defendant, Berl Slack, Jr., pleaded guilty to the offense of burglary on October 23, 1978, and was placed on probation for a period of two years on November 30, 1978. On February 2, 1979, he was arrested for a second burglary, and the charge was filed on February 5, 1979. Three days later, February 8, a petition to revoke defendant's probation was filed, alleging the commission of the burglary as the probation violation. A probation revocation hearing was held on February 23, and the court revoked probation.

On March 6, 1979, a jury trial was held on the second burglary, and defendant was found guilty. A sentencing hearing was held for both cases on April 20, 1979, and defendant was sentenced to concurrent terms of seven years' imprisonment in each case.

On appeal, defendant contends that the trial court erred in failing to dismiss the petition to revoke his probation, where defendant had been incarcerated for more than 14 days between the filing of the petition and the revocation hearing, in violation of section 5-6-4(b) of the Unified Code of Corrections (Ill.Rev.Stat.1979, ch. 38, par. 1005-6-4(b)). The defendant also claims that he was denied a fair sentencing hearing, and that the sentences imposed were excessive.

Section 5-6-4(b) of the Unified Code of Corrections, in relevant part, provides as follows:

"The court shall conduct a hearing of the alleged (probation) violation. * * * In any case where an offender remains incarcerated as a result of his alleged violation of the court's earlier order of probation, supervision, or conditional discharge, such hearing shall be held within 14 days of the onset of said incarceration."

The chronology of the case on appeal makes it apparent that defendant was not incarcerated "as a result of his alleged violation of the court's earlier order of probation," but as a result of his arrest on the substantive, subsequent burglary for which the petition to revoke was filed. Defendant was placed in custody for burglary on February 2, for which he was charged on February 5. Only subsequently, on February 8, was the petition to revoke filed. Where incarceration is based on the substantive charge rather than the petition to revoke, the statute is, by its terms, inapplicable. The defendant's argument that the State could always nullify or circumvent the statute by filing a charge on the substantive offense is not valid. Oftentimes, a charge of probation violation does not involve a subsequent crime, and in such cases the statute would always retain its effect.

Moreover, even if defendant's incarceration had resulted from the probation revocation charge, the only remedy for violation of the 14-day limit of the statute is immediate release from custody, and the violation would not be grounds for dismissal of the petition to revoke. As we recently stated in the case of People v. Stufflebean (5th Dist. 1979), 73 Ill.App.3d 801, 392 N.E.2d 414, 416, 29 Ill.Dec. 857, 859:

" * * * The purpose of Section 5-6-4(b) is to prevent the State from incarcerating an individual for an excessive period of time pending a hearing on the merits of a petition to revoke probation. Clearly then, the remedy available to an accused upon remaining in a county jail for a period exceeding the statutory limitation would be an immediate release from custody, not a dismissal of the charge. This, we believe, is consistent with the legislative intent."

Accordingly, we find that the trial court properly denied defendant's motion to dismiss the petition to revoke probation.

We believe, however, that defendant is entitled to a new sentencing hearing. As he points out, the trial judge did not specify the reasons for his sentencing determination on the record. At the sentencing hearing, the...