People v. Tucker

• Decision Date: 29 December 1976
• Docket Number: Nos. 76--437 and 76--442,s. 76--437 and 76--442
• Citation: 358 N.E.2d 729,44 Ill.App.3d 583
• Parties: , 3 Ill.Dec. 331 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Marvin TUCKER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 729

358 N.E.2d 729

44 Ill.App.3d 583, 3 Ill.Dec. 331

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Marvin TUCKER, Defendant-Appellant.

Nos. 76--437 and 76--442.

Appellate Court of Illinois, Third District.

Dec. 29, 1976.

Robert J. Agostinelli, Asst. State App. Defender, Ottawa, for defendant-appellant.

Edward P. Drolet, State's Atty., Kankakee County, Kankakee, James E. Hinterlong, Ill. State's Attys. Assn., App. Asst. Serv., Ottawa, for plaintiff-appellee; Michael B. Weinstein, Ottawa, of counsel.

ALLOY, Presiding Justice:

Defendant Marvin Tucker had entered a plea of guilty on September 11, 1975, to charges of attempted burglary and burglary. Such pleas were entered as a result of negotiations between defendant and the prosecutor. Another count of an indictment pending at such time, for armed robbery, was nolle-prossed by the State in accordance with such negotiations. Defendant was thereafter sentenced to a term of 5 years probation on each charge, which were to run concurrently.

Defendant's probation was revoked following a hearing on June 4, 1976, and defendant was sentenced to concurrent terms of imprisonment of from 1 to 3 years on the attempt charge and from 2 to 6 years on the burglary charge. The conviction and sentence on a robbery charge is not part of the instant appeal, other than as forming the basis for revocation of probation.

On appeal in this Court, defendant raises only one issue. He contends it was reversible error for the court to revoke the defendant's probation when the State failed to produce what is described by the defendant as essential competent evidence of a probation violation. The issue is more specifically stated, as a contention that the trial court erred by taking judicial notice of defendant's conviction for robbery, in reaching a determination that defendant had violated his probation. The contentions of defendant were based principally on People v. Davis (1st Dist. 1975), 32 Ill.App.3d 760, 336 N.E.2d 151, in which case the Appellate Court stated that the trial court could not take judicial notice of defendant's subsequent conviction in a probation revocation proceeding.

After the brief of appellant had been filed in this case, the Illinois Supreme Court in an appeal of the Davis case, reversed that case, by an opinion filed on November 15, 1976, in Illinois Supreme Court docket case No. 48052. In the Davis case, in the Supreme Court of this State, the court stated that the prior conviction of defendant 'falls squarely within the judicially noticeable category of facts 'capable of immediate and accurate demonstration by resort to easily accessible sources of indisputable accuracy'. The...