People v. Dinger , 177 Ill. App. 3d 174 ( 1988 )

PRESIDING JUSTICE McCULLOUGH,

dissenting:

• First, the relief requested by the parties causes concern as to issues before this court. The State argues that the court properly sentenced defendant to a four-year sentence but was without authority to rule on defendant’s petition. The defendant argues that entertainment of the petition was proper, her probation was properly revoked but she should receive only a three-year sentence. Additionally, the Moultrie County circuit court sentenced the defendant to three years in the Department of Corrections on January 7, 1988. In the instant case, the trial judge sentenced the defendant to a term of four years on April 14, 1988, the sentence to begin more than three months earlier, January 7, 1988. The defendant on the date of sentencing, April 14, 1988, had served more than three months, without the credit for time served, on the four-year sentence.

I believe the trial court’s authority to entertain defendant’s petition to terminate probation is not an issue in this appeal. The only issue is whether the trial court abused its discretion in sentencing defendant to four years in the penitentiary.

I am troubled by the State’s argument that entertaining the petition and ordering the probation revoked was beyond the court’s authority. The defendant did not appeal this issue. The State did not cross-appeal, nor do they have the authority to do so. Had the trial court simply terminated the probation with no other sentence, the State could not appeal. Referring to the supreme court’s decision in Daley is not helpful. Daley, concerned with prosecutions ordered by the court, stated the State’s Attorney “is vested with exclusive discretion in the initiation and management of a criminal prosecution.” (Daley, 94 Ill. 2d at 45, 445 N.E.2d at 272.) “An Act in regard to attorneys general and state’s attorneys” does not vest the State’s Attorney with exclusive discretion in probation violation matters. Ill. Rev. Stat. 1987, ch. 14, par. 5.

The trial court did have authority to entertain the defendant’s petition to terminate probation. Section 5—6—4(a) (Ill. Rev. Stat. 1987, ch. 38, par. 1005—6—4(a)) provides the procedures to be followed when “a petition is filed charging a violation of a condition.” The legislation does not state that the State’s Attorney is solely responsible to file the petition. In fact, in section 5—6—4(f) “[t]he conditions of probation *** may be modified by the court on motion of the probation officer or on its own motion or at the request of the offender after notice and a hearing.” Ill. Rev. Stat. 1987, ch. 38, par. 1005—6—4(f).

All that is required is notice and hearing. The defendant is not foreclosed from filing a request (petition), and if the provisions of 5—6—4 are complied with, the trial court has the power and discretion to rule thereon.

Historically, trial judges have granted petitions to terminate probation. For example, it is not unusual for a trial court to terminate probation upon request of the probation officer or defendant to allow the defendant to enter military service.

With respect to the sentence imposed against the defendant, the defendant argues section 5—8—4(a) as authority to reduce the sentence to three years. This section does not apply in circumstances similar to this case and likewise any argument as to comity is without merit.

As we stated in People v. Kauffman (1988), 172 Ill. App. 3d 1040, 527 N.E.2d 645, when a defendant is admitted to probation and his probation is revoked, the trial court may sentence the defendant to any sentence that would have been appropriate for the original offense. (See also People v. Young (1985), 138 Ill. App. 3d 130, 134-35, 485 N.E.2d 443, 445.) As the imposition of a sentence is a matter of judicial discretion, absent abuse of that discretion, the sentence will not be altered on review. People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882, 883.

The trial court properly considered the elements of aggravation and mitigation in sentencing the defendant. The conviction and sentence in Moultrie County was a proper consideration in the sentencing in Macon County. It was the principal basis for defendant’s petition. Although the defendant’s counsel in argument infers that the defendant may have been involved in other criminal activities, there is no evidence in the record to justify this. The trial court does make references to other conduct of the defendant which may very well have been some conduct in Coles County. The record does not include a transcript of the proceedings of the hearing on January 8, 1988, nor of two hearings held upon April 5, 1988, at 10 a.m. in the morning and at 3 p.m. that afternoon. The absence of any record of the hearings on those dates is further justification for affirming the trial court in this instance.

The trial court should be affirmed.