People v. Hollinshead ( 1991 )

JUSTICE McCULLOUGH,

concurring in part and dissenting in part:

I agree the judgment of the circuit court of Sangamon County should be affirmed. I do not agree the cause should be remanded with directions to set a time frame for hearing at which remission of the detention will be considered.

Tipton involved a consolidated case of defendant Tipton and defendant Richardson. With respect to defendant Tipton, he was sentenced to a period of two years' probation subject to several conditions, including that he serve the last 60 days of his probation period in the county jail. No provision was made for a remission hearing. The supreme court indicated in Tipton that he, Tipton, could have asked for a modification as to the jail sentence under the provision of 5 — 6—4(f) of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 6—4(f)). Nothing in Tipton requires the trial judge to set a specific date for a remission hearing. In V.L.F., referring to Burke, this court stated:

“The instruction on remand, that the trial court set a date certain for a remission hearing, was given as an aside where the cause was already being remanded to remedy an erroneous sentence in excess of the statutory maximum. While it is not necessary or practical for a trial court to anticipate the exact date so far in advance of a remission hearing, the court should designate a reasonable time frame in which a hearing will be held, rather than placing the burden on the respondent to file a motion to vacate the condition of probation.” (V.L.F., 174 Ill. App. 3d at 938, 529 N.E.2d at 317.)

In Burke (136 Ill. App. 3d at 609, 483 N.E.2d at 687), we said “it would be the better practice when such an order is entered *** to specify a date of hearing” in the order of probation. We did not make it mandatory. In Tipton the supreme court stated if the defendant desired to have the probation order modified, he could under the provisions of section 5 — 6—4(f) of the Code file a petition with the court. This is not an onerous burden against the defendant, especially when he is asking for the mercy of the court as to a modification.

Here, the trial court stated:

“I’m going to impose a jail sentence of 60 days at the end of the three-year probation period, subject to review, but I’m going to require that the Defendant, in the event that he desires that that 60 days jail sentence be remitted, file an application with the Court at the end of the — if he — desires to — between the end of the thirty-second month, the end of the thirty-second month of this probation and before the end of the thirty-third month of probation, which will enable a hearing to be held as to whether the 60 days jail sentence should be remitted during the month immediately preceding the 60 day period at the end of the thirty-six month probation period.

So that there may be no misunderstanding, Mr. Hollinshead, it will be your duty to file a Petition with the Court if you desire to have that 60-day jail period eliminated from your probation within the time, within the one-month period that I’ve described. That is between the end of the thirty-second month of probation and the end of the thirty-third month of probation.”

This is a hybrid factual situation between that in Tipton of defendant Tipton and defendant Richardson. It is clear, however, that pursuant to the supreme court’s rulings in Tipton, the procedures set forth by the trial court in this case were correct. The trial court set a reasonable time frame as required by V.L.F. Requiring defendant to ask for hearing within a certain time frame will only benefit him and is certainly not a burden.

An additional basis for not requiring remand to the trial court are our statements in Burke, stating:

“Just as the trial court’s failure to state reasons for the sentence is waived unless the defendant asks for a fuller statement at the sentencing hearing [citations], so also may the opportunity for an explanation of the conditions for probation be waived if a defendant fails to avail himself of it at that time.” Burke, 136 Ill. App. 3d at 608, 483 N.E.2d at 685.

The defendant did not seek an explanation of the conditions attached to his term of probation during the sentencing hearing and, certainly, the defendant has waived this issue on appeal.