People v. Dinger

554 N.E.2d 1376, 136 Ill. 2d 248, 144 Ill. Dec. 88, 21 A.L.R. 5th 879, 1990 Ill. LEXIS 29
CourtIllinois Supreme Court
DecidedMarch 29, 1990
Docket68234
StatusPublished
Cited by50 cases

This text of 554 N.E.2d 1376 (People v. Dinger) is published on Counsel Stack Legal Research, covering Illinois Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Dinger, 554 N.E.2d 1376, 136 Ill. 2d 248, 144 Ill. Dec. 88, 21 A.L.R. 5th 879, 1990 Ill. LEXIS 29 (Ill. 1990).

Opinion

JUSTICE MILLER

delivered the opinion of the court:

Defendant, Sharon A. Dinger, filed a petition in the circuit court of Macon County on April 5, 1988, to terminate her probation, which included an order of restitution. Defendant was serving a term of 30 months’ probation after pleading guilty to the theft of property exceeding $300 in value (Ill. Rev. Stat. 1987, ch. 38, par. 16 — 1). Over the State’s objection, the trial court ordered defendant’s probation revoked and later sentenced defendant to a term of four years’ imprisonment. Defendant appealed her sentence to the appellate court. A divided panel of the appellate court vacated the trial court’s revocation of defendant’s probation and sentence of imprisonment, agreeing with the State that the trial court did not have jurisdiction over the revocation proceeding. (177 Ill. App. 3d 174.) We granted defendant’s petition for leave to appeal pursuant to Supreme Court Rule 315 (107 Ill. 2d R. 315).

On November 7, 1986, defendant was charged by information filed in the circuit court of Macon County with the theft of property exceeding $300 (Ill. Rev. Stat. 1987, ch. 38, par. 16 — 1). She pleaded guilty to the offense at a hearing on June 17, 1987, and was later sentenced to serve 30 months’ probation. A condition of the probation was payment of restitution in the amount of $57,000.

During her probationary period, defendant was convicted in the circuit court of Moultrie County for the offense of forgery (Ill. Rev. Stat. 1987, ch. 38, par. 17 — 3), and was sentenced on January 7, 1988, to three years’ imprisonment. Although the records of the Moultrie County proceedings are not before us, it appears that these proceedings were based on the same series of acts that formed the basis of the Macon County proceedings.

The day after defendant was sentenced on her conviction in Moultrie County, she and her attorney appeared before the trial judge who had sentenced defendant to probation in Macon County. Defendant’s counsel notified the judge of defendant’s Moultrie County conviction and represented that defendant had violated the conditions of her probation. The trial judge, with an assistant State’s Attorney present, found that defendant had violated probation and that her probation should be terminated as unsuccessful. The trial judge then set the cause for a sentencing hearing on April 5, 1988.

At the April 5, 1988, hearing, the State filed a motion requesting reconsideration of the order revoking defendant’s probation. In its motion, the State noted that no petition to revoke probation had been filed or was pending before the trial court on the date that the trial judge revoked defendant’s probation. The motion also alleged that the trial court proceeded on defendant’s motion without advising defendant of her rights pursuant to Supreme Court Rule 402 (107 Ill. 2d R. 402) and without eliciting testimony from her concerning the alleged probation violation. In addition, the State contended that the initiation of a probation revocation proceeding by anyone other than the State’s Attorney was a usurpation of the prosecutorial function and therefore void. After hearing arguments of counsel, the trial judge took the motion under advisement.

At a hearing held later that afternoon, the trial judge granted the State’s motion to reconsider the revocation of defendant’s probation. The trial judge then recognized a written petition filed by defendant earlier that day asking the court to “terminate” her probation. In the petition, defendant alleged that she could not comply with the terms of the probation due to her incarceration. She noted that evidence of criminal activity during the period of her probation on the Macon County cause was presented at the Moultrie County sentencing hearing and requested a sentence to a fixed term of imprisonment in place of probation. Defendant also contended that because the facts underlying the convictions in both counties were the same, comity required that her sentence in Macon County be no longer than that imposed by the circuit court of Moultrie County. After hearing arguments of counsel, the trial judge granted defendant’s petition to terminate her probation and continued the cause for a sentencing hearing.

At the April 14, 1988, sentencing hearing, the State noted its continuing objection to the court’s recognition of defendant’s petition for a revocation of probation. The trial judge overruled the State’s objection and continued with the hearing. After testimony by the victim and arguments of counsel, the trial judge sentenced defendant to a term of four years’ imprisonment, to run concurrently with the three-year sentence imposed by the circuit court of Moultrie County. Mittimus was to issue effective January 8, 1988.

Defendant appealed the four-year sentence to the appellate court. She argued that principles of comity required the circuit court of Macon County to impose a sentence no greater than the three-year sentence imposed by Moultrie County for a conviction based on the same acts. On appeal, the State questioned the authority of the Macon County trial judge to revoke probation absent the State’s initiation of the proceeding. A majority of the appellate court held that neither the trial judge nor defendant had authority to initiate revocation proceedings and vacated the trial court’s revocation of probation and the imposition of the four-year prison term. The appellate court determined that there is no statutory authority by which defendant could seek to have her probation revoked and that the trial court could not proceed on its own authority without violating the doctrine of separation of powers between the executive and judicial branches of government. 177 Ill. App. 3d at 177.

The dissenting justice argued that the State had not, and could not, cross-appeal the authority of defendant or the trial judge to initiate revocation proceedings and therefore would have affirmed the trial court. The dissenting justice further believed that the trial court had authority to entertain defendant’s petition and that the trial judge did not abuse his discretion by sentencing defendant to four years’ imprisonment. 177 Ill. .App. 3d at 177-79 (McCullough, P.J., dissenting).

Although counsel for defendant in his petition for leave to appeal, submitted in lieu of a brief, summarily alluded to the dissenting appellate justice’s opinion, counsel did not adequately raise or argue that the trial judge’s authority over the revocation proceeding was not properly before the appellate court. Points raised but not argued or supported with authority in a party’s brief are waived. (107 Ill. 2d R. 341(e)(7); Collins v. Westlake Community Hospital (1974), 57 Ill. 2d 388, 392.) We therefore do not address the issue of whether the appellate court should have reached the question of the trial judge’s authority to proceed on the petition for revocation filed on behalf of defendant. People ex rel. Aldworth v. Dutkanych (1986), 112 Ill. 2d 505, 511.

We note also that although defendant labeled her pleading a petition to “terminate” probation, the petition’s title was a misnomer. Section 5 — 6—2(d) of the Unified Code of Corrections requires that upon “termination of the period of probation ***, the court shall enter an order discharging the offender.” (Ill. Rev. Stat. 1987, eh. 38, par.

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Cite This Page — Counsel Stack

Bluebook (online)
554 N.E.2d 1376, 136 Ill. 2d 248, 144 Ill. Dec. 88, 21 A.L.R. 5th 879, 1990 Ill. LEXIS 29, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-dinger-ill-1990.