People v. Tarkowski, 80-374

• Decision Date: 22 September 1981
• Docket Number: No. 80-374,80-374
• Parties: , 55 Ill.Dec. 485 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. John TARKOWSKI, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 631

426 N.E.2d 631

100 Ill.App.3d 153, 55 Ill.Dec. 485

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. John TARKOWSKI, Defendant-Appellant.

No. 80-374.

Appellate Court of Illinois, Second District.

Sept. 22, 1981.

Rehearing Denied Oct. 19, 1981.

John Tarkowski, Wauconda, for defendant-appellant.

J. Michael Fitzsimmons, State's Atty., Barbara Preiner, Asst. State's Atty., Wheaton, for plaintiff-appellee.

REINHARD, Justice:

On September 5, 1978, defendant was arrested for toll evasion (Ill.Rev.Stat.1977, ch. 121, par. 100-27.1), resisting a peace officer (Ill.Rev.Stat.1977, ch. 38, par. 31-1) and failure to surrender his drivers license. (Ill.Rev.Stat.1977, ch. 951/2, par. 6-112.) Those charges arose out of an incident which occurred at the Plaza 51 toll booth on the East-West Tollway near Oakbrook, Illinois.

On September 5, 1978, at approximately 12 noon, defendant testified he was traveling westbound on the Eisenhower Expressway from downtown Chicago when he inadvertently entered the tollway system. He drove up to the toll booth occupied by tollway employee John Cox, told him of the mistake he had made and asked Cox if he could turn around and proceed back in the direction from which he came. Cox told the defendant it was illegal to make U-turns on the tollway and that he would have to pay the thirty cent toll. Defendant was then instructed by Cox to park his car at the side of the road and go into the administration building to talk to his supervisor, Russell Duxbury. Defendant entered the building and related his story to Duxbury, who also insisted that he pay the toll.

Moments later, a state trooper, Eugenia Dresel, arrived and informed defendant that he would have to pay the toll despite his mistake in getting on the tollway. Despite such requests, defendant steadfastly refused to pay the toll, arguing that he never intended to get on, or use, the tollway. Although defendant denies it, Duxbury, Dresel, and Candy Cerny, a toll clerk, all testified that when Trooper Dresel asked defendant for his drivers license, he refused to tender it to her, but simply held it above her head. Subsequently, Troopers Moses and Brady appeared on the scene, and defendant was placed under arrest, patted down for weapons and transported to the DuPage County jail. While defendant asserts that he was physically abused by the officers at the time of the arrest, the other witnesses uniformly denied this, and the medical officer at the jail indicated that he saw no unusual bruises or marks about defendant's body. Bond was posted for defendant and he was released pending trial.

Following a jury trial, defendant was convicted of resisting a peace officer and toll evasion. (The charge of failure to surrender his drivers license was dismissed prior to trial.) On April 19, 1979, defendant was sentenced to a one year period of court supervision on both convictions, and was ordered to pay fines totalling $30 and court costs of $45. Defendant returned to court on April 21, 1980, and the trial judge terminated court supervision as satisfactorily completed. Despite defendant's objection that the bond money was not his, the court ordered that the fines and costs be deducted from the bond.

On May 15, 1980, defendant filed a notice of appeal from the April 19, 1979 order placing him on supervision and from the April 21, 1980 order terminating supervision and satisfying the fines and court costs from the bond. On April 8, 1981, the State filed a motion in this court to dismiss the appeal, contending that defendant's notice of appeal was untimely, and defendant filed a response thereto. On April 21, 1981, this court granted the State's motion to dismiss the appeal from the April 19, 1979 order placing defendant on supervision for want of a timely notice of appeal; with respect to the appeal from the April 21, 1980 order, the motion to dismiss and objections thereto were ordered taken with the case.

While defendant in his pro se brief sets out 12 separate issues for resolution by this court, only one relates to the April 21, 1980 proceedings, i. e., whether the trial court acted improperly in ordering that the assessed fines and costs be satisfied from the money posted by a third person as defendant's bail; all the remaining issues relate to the original charges against him and his April, 1979 trial. ¹ Since this court has ruled already that defendant failed to perfect a timely notice of appeal from the April 19, 1979 order of supervision, we only need decide at this time the appealability of the April 21, 1980, order. However, since the issues raised with respect to the appealability of the April 19, 1979, order of supervision are relevant and important, we set out the rationale for our previous order herein.

The issue presented, simply stated, is whether a disposition of supervision pursuant to section 5-6-1 of the Unified Code of Corrections (Ill.Rev.Stat.1977, ch. 38, par. 1005-6-1) is appealable and, if so, at what stage and by what authority.

While the practice of placing defendants on supervision was fairly common prior to 1976 (People v. Breen (1976), 62 Ill.2d 323, 342 N.E.2d 31), it was not statutorily authorized under the Unified Code of Corrections until that year. In People v. Breen, the Illinois Supreme Court held that, absent appropriate legislation, a trial court is without authority to place a defendant on supervision. Our supreme court reviewed this case by exercising its supervisory authority (Ill.Const., Art. VI, sec. 16; Supreme Court Rule 315(a) (Ill.Rev.Stat.1979, ch. 110A, par. 315(a))) and declined to consider the question of the finality of the supervision order from which the appeal was sought. (Breen, at 326, 342 N.E.2d 31.) Within 7 months of that decision, the legislature amended section 5-6-1 of the Unified Code of Corrections (Ill.Rev.Stat.1977, ch. 38, par. 1005-6-1) to add a new subsection (c), which provided for court supervision as an authorized disposition, and added section 5-6-3.1 (Ill.Rev.Stat.1977, ch. 38, par. 1005-6-3.1) which set forth the incidents and conditions of supervision. A disposition of probation without the entry of a prior, still existing judgment has been a legislatively authorized disposition for a number of years under the Controlled Substances Act (Ill.Rev.Stat.1979, ch. 561/2, par. 1410) and the Cannabis Control Act. (Ill.Rev.Stat.1979, ch. 561/2, par. 710.) And, a disposition of continuance under supervision is permitted under the Juvenile Court Act (Ill.Rev.Stat.1979, ch. 37, par. 704-7) without a prior finding or adjudication of the minor as a person described in section 2-1 of that Act.

Two years later, in People v. Koonce (1978), 65 Ill.App.3d 86, 22 Ill.Dec. 127, 382 N.E.2d 447, the first district was faced with a case in which the defendant sought review of an order placing him on supervision. The court disposed of that issue summarily and concluded that, since at the time defendant was placed on supervision a finding of supervision was not a final order or sentence, the appeal would have to be dismissed. In so ruling, however, the court did note in dictum that the statute had been changed "so that supervision is a final order for purposes of appeal." (Koonce at 65 Ill.App.3d 86, 22 Ill.Dec. 128, 382 N.E.2d 448.) The court was referring to newly-added subsection (i) which provides:

"A disposition of supervision is a final order for the purposes of appeal." Ill.Rev.Stat.1977, ch. 38, par. 1005-6-3.1(i).

More recently, in In re A.M., a Minor (1981), 94 Ill.App.3d 86, 49 Ill.Dec. 630, 418 N.E.2d 484, we dismissed an appeal by a minor from a "continuance under supervision" authorized under the Juvenile Court Act (Ill.Rev.Stat.1979, ch. 37, par. 704-7), finding that there was no final, appealable order. However, the supervision provided for under that Act may only be entered by the court "in the absence of objection made in open court by the minor, his parent, guardian, custodian or responsible relative." At that time, however, we reserved comment on the question of whether the legislature may confer appellate jurisdiction from orders of supervision, stating:

"In light of In re Marriage of Lentz (1980), 79 Ill.2d 400, 38 Ill.Dec. 582, 403 N.E.2d 1036, our citation (of Koonce) expresses no opinion of Koonce's implication that the legislature may, by express appeal provisions, effectuate our jurisdiction to hear appeals from supervision orders not based on an adjudication of guilt." In re A.M., a Minor (1981), 94 Ill.App.3d 86, 89, 49 Ill.Dec. 630, 632, n. 1, 418 N.E.2d 484, 486, n. 1.

The question of the appealability of orders placing persons under supervision or under a probationary status under sections 10 and 410 has been addressed, but not squarely resolved, in several other appellate court decisions. (See, e. g. Sanner v. Champaign County (1980), 88 Ill.App.3d 491, 496-97, 43 Ill.Dec. 656, 410 N.E.2d 656; People v. Martinez (1977), 54 Ill. App.3d 607, 609, 12 Ill.Dec. 417, 370 N.E.2d 40.) At this time, however, we are compelled to address the question of whether section 5-6-3.1(i) of the Unified Code of Corrections (Ill.Rev.Stat.1977 ch. 38, par. 1005-6-3.1(i)) confers appellate jurisdiction from orders placing defendants on court supervision, and if not, whether such an order is appealable.

Article VI, section 6, of our constitution provides that final judgments of a circuit court are appealable as a matter of right "except that after a trial on the merits in a criminal case, there shall be no appeal from a judgment of acquittal." (Ill.Const.1970, Art. VI, § 6.) Article VI, section 6 provides further, however, that our supreme court "may provide by rule for appeals to the Appellate Court from other than final judgments of Circuit Courts." (Ill.Const.1970, Art. VI, § 6.) Article VI, section 16, of our constitution provides that "(t)he Supreme Court shall provide by rule for expeditious and inexpensive appeals." Ill.Const.1970, Art....