People v. Johnson , 174 Ill. App. 3d 812 ( 1988 )

JUSTICE LUND

delivered the opinion of the court:

On December 9, 1987, defendant Julie Ann Johnson entered a plea of guilty to driving under the influence of alcohol, and judgment was entered based on the plea. On January 19, 1988, rather than sentencing the defendant, the trial court placed defendant under supervision pursuant to section 5 — 6—1(c) of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 6—1(c)). Prior to granting supervision, the trial court stated one of the conditions of supervision would require the defendant to place an advertisement in the Champaign daily newspaper publishing the picture taken of the defendant when booked, together with an apology for her conduct. The defendant was required to and did agree to this condition prior to the supervision being granted. The sole purpose of defendant’s appeal is to challenge the propriety of this condition.

APPELLATE JURISDICTION

We first address the issue of appellate jurisdiction. Section 5 — 6—1(c) of the Code allows for a court order of supervision with the possibility of the defendant being discharged without judgment being entered. Because judgment was entered on the plea on December 9, 1987, and such is inconsistent with supervision, we find the December 9 judgment was effectively vacated by the court’s January 19, 1988, order granting supervision. See People v. Allen (1985), 109 Ill. 2d 177, 486 N.E.2d 873.

A problem still exists because Supreme Court Rule 604(d) provides, in part:

“No appeal from a judgment entered upon a plea of guilty shall be taken unless the defendant, within. 30 days of the date on which sentence is imposed, files in the trial court a motion to withdraw his plea of guilty and vacate the judgment.” (107 Ill. 2d R. 604(d).)

This condition applies to those sentenced to incarceration, to probation, or to conditional discharge, and has been held to be mandatory. (See People v. Wilk (1988), 124 Ill. 2d 93.) Because the rule refers to an appeal from a judgment and judgment is not entered when supervision is ordered, we conclude that Rule 604(d) does not apply to this case. A defendant cannot ask to vacate a judgment when none exists. The present appeal is pursuant to authority granted by Rule 604(b), which provides:

“A defendant who has been placed under supervision or found guilty and sentenced to probation or conditional discharge (see Ill. Rev. Stat. 1981, ch. 38, pars. 1005 — 6—1 through 1005 — 6—4), or to periodic imprisonment (see Ill. Rev. Stat. 1981, ch. 38, pars. 1005 — 7—1 through 1005 — 7—8), may-appeal from the judgment and may seek review of the conditions of supervision, or of the finding of guilt or the conditions of the sentence, or both. He may also appeal from an order modifying the conditions of or revoking such an order or sentence.” (107 Ill. 2d R. 604(b).)

We conclude that defendant’s appeal is properly before this court.

PROPRIETY OF CONDITION OF SUPERVISION

The power to grant an order of supervision is not unfettered. Sections 5 — 6—1(c), (d), and (e) of the Code (Ill. Rev. Stat. 1987, ch. 38, pars. 1005 — 6—1(c), (d), (e)) set forth limitations. Section 5 — 6—1(c) of the Code provides, in part:

“[Hjaving regard for the circumstances of the offense, and the history, character and condition of the offender, the court is of the opinion that:

(1) the offender is not likely to commit further crimes;

(2) the defendant and the public would be best served if the defendant were not to receive a criminal record; and

(3) in the best interests of justice an order of supervision is more appropriate than a sentence otherwise permitted under this Code.” (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 6—1(c).)

The incidents and conditions of supervision are set forth in section 5— 6 — 3.1 of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 6—3.1). Section 5 — 6—3.1(c) states:

“The court may in addition to other reasonable conditions relating to the nature of the offense or the rehabilitation of the defendant as determined for each defendant in the proper discretion of the court require that the person ***.”

The section then goes on to list specific authorized conditions. None of these specifically listed conditions refer to deterrent to others, nor do any of the listed conditions suggest holding up a defendant to ridicule. While section 5 — 6—3.1 allows for the payment of fines and costs and reasonable public and community service, the overall intent appears to aid the defendant in rehabilitation and in avoiding future violations. Psychological and psychiatric treatment can be required, as can treatment for drug addiction or alcoholism. Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 6—3.1(c)(4).

The defendant in this case is a young lady with a history of being a good student, having no prior criminal record, and has been evaluated as not having an alcohol or drug problem. No accident or injury to others was involved in the charge now before the court.

We recognize that the trial judge may be attempting to put more bite, or punishment, in the supervision process. However, the effect of the publication appears to go beyond the intent of the statute and, possibly, adds public ridicule as a condition. Neither the trial court nor this court, without professional assistance, can determine the psychological or psychiatric effect of the publication. An adverse effect upon the defendant would certainly be inconsistent with rehabilitation and with the statutory provision allowing the court to require psychological or psychiatric treatment.

For the reasons set forth in this opinion, we determine that the court’s condition of supervision relating to the publication of the picture and apology in a local newspaper was improper and must be vacated.

Order of the trial court requiring defendant to publish the photograph and apology in a local newspaper is vacated.

Affirmed in part; vacated in part.

KNECHT, J., concurs.