People v. Wilson

NO. 4-97-0083

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Champaign County
TRINI WILSON, ) No. 94T8325
Defendant-Appellant. )
) Honorable
) Jeffrey B. Ford,
) Judge Presiding.
_________________________________________________________________

JUSTICE COOK delivered the opinion of the court:

On July 26, 1994, defendant Trini Wilson pled guilty to
the offense of driving under the influence of alcohol and was
sentenced to probation for 18 months. The probation order re-
quired that he (1) serve 120 days in jail (with credit for 14
days served); (2) complete 75 hours of outpatient alcohol/drug
treatment and aftercare; and (3) attend three Alcoholics Anony-
mous (AA) meetings per week for 30 weeks. The probation order
also stated that defendant was to serve 20 days of the jail time
immediately and to attend a remissions hearing beginning in
November 1994. Although it is unclear from the probation order,
it appears the purpose of the remission hearings was to supervise
defendant's compliance with the AA and drug treatment conditions,
with the possibility that some or all of the 120 days' jail time
would be forgiven if he complied.
From the beginning, defendant failed to comply with the
probation conditions. At the first remission hearing, on Novem-ber 18, 1994, defendant presented proof that he had attended only
nine AA meetings and the court ordered him to serve two more days
of the 120-day sentence. The defendant failed to appear at the
next scheduled remission hearing, so the second remission hearing
was not held until May 16, 1995. There the court discovered
defendant had been discharged from substance-abuse treatment
against staff advice "due to lack of participation in treatment"
and ordered him to serve an additional 14 days.
At the third remission hearing, on June 28, 1995, and
the fourth remission hearing, on July 14, 1995, defendant showed
compliance with the AA and drug treatment conditions and was not
incarcerated. However, on August 23, 1995, defendant was found
to have committed the offense of driving on a revoked license.
He failed to appear at the next remission hearing. The fifth
remission hearing was finally held on February 21, 1996. Defen-
dant produced no documentation and was ordered to serve the rest
of his 120-day jail sentence. Eight days after the hearing, on
February 29, 1996, defendant's probation period expired.
On April 15, 1996, 45 days after defendant's probation
expired, the State filed a petition for rule to show cause why
the defendant should not be held in indirect civil contempt. On
September 3, 1996, the trial court found defendant in indirect
civil contempt for willfully failing to comply with the AA and
drug treatment orders. The contempt order required defendant to
attend the previously ordered AA meetings and treatment by
October 28, 1996, or he would be remanded to jail until he purged
his contempt. The court later clarified the order, at
defendant's request, by another order of January 24, 1997,
stating that the literal language of the order did not reflect
the practice of the court. The court clarified that if defendant
was jailed for not purging his contempt, he would be afforded a
hearing within 21 days to demonstrate his willingness to comply
with the court's order if released. On January 16, 1997, defen-
dant was discharged from probation. Defendant filed a notice of
appeal on January 29, 1997, and was granted a stay pending appeal
on February 20, 1997.
Defendant argues the trial court lacked subject-matter
jurisdiction to find him in civil contempt because his probation
period had expired. Additionally, defendant argues that even if
the court had jurisdiction, the particular order of civil con-
tempt was not coercive in nature. The order was punitive because
it potentially imprisoned defendant for periods of time in which
he could not obtain immediate release by compliance with the
probation order.
It is generally said that a court's jurisdiction ends
with the probation expiration date. People v. Mowery, 116 Ill.
App. 3d 695, 704, 452 N.E.2d 363, 370 (1983); People v. Johnson,
265 Ill. App. 3d 509, 511, 637 N.E.2d 700, 701 (1994). Once the
probation period ends, the defendant may stop looking over his
shoulder and is assured that the State will not seek the stronger
sentence the court originally could have imposed. At that point,
probation is terminated and there is nothing left to revoke or
modify. People v. Randolph, 98 Ill. App. 3d 696, 699, 424 N.E.2d 893, 895 (1981).
However, this general rule only applies to revocation
or modification of probation. In some instances, a court may
retain subject-matter jurisdiction to enforce unfulfilled condi-
tions of probation after the probation period has expired. See
People v. Brown, 142 Ill. App. 3d 712, 713, 492 N.E.2d 238, 239
(1986); People v. Draves, 149 Ill. App. 3d 657, 659, 500 N.E.2d 1072, 1073 (1986); People v. Bertalot, 164 Ill. App. 3d 89, 93,
518 N.E.2d 467, 470 (1987); Mowery, 116 Ill. App. 3d at 707, 452 N.E.2d at 372 (Miller, J., concurring in part and dissenting in
part). Trial courts may use their contempt power after the
probation period to enforce conditions of probation that can
survive "independently" of the probation order. Draves, 149 Ill.
App. 3d at 659, 500 N.E.2d at 1073; Bertalot, 164 Ill. App. 3d at
92-93, 518 N.E.2d at 470; Mowery, 116 Ill. App. 3d at 707, 452 N.E.2d at 372 (Miller, J., concurring in part and dissenting in
part).
In Mowery, the trial court found defendant in contempt
for neglecting to pay court costs and restitution as part of his
sentence of probation. Mowery, 116 Ill. App. 3d at 697, 452 N.E.2d at 365. Justice Miller stated:
"The expiration of probation should have no
effect here, for the contempt is a separate
proceeding ***. I would also construe the
fine and restitution ordered here *** as
independent dispositions that survive the
expiration of the period of probation."
(Emphasis added.) Mowery, 116 Ill. App. 3d
at 707, 452 N.E.2d at 372 (Miller, J., con-
curring in part and dissenting in part).
Subsequent cases have adopted Justice Miller's position. Draves,
149 Ill. App. 3d at 659, 500 N.E.2d at 1073; Bertalot, 164 Ill.
App. 3d at 92, 518 N.E.2d at 470.
In Bertalot, the court held that monetary conditions,
such as fines and restitution, survived probation because they
were "independent dispositions." Bertalot, 164 Ill. App. 3d at
92-93, 518 N.E.2d at 470. In determining whether a probation
condition was an "independent disposition," the court looked to
section 5-5-3(b) of the Unified Code of Corrections (Code) (730
ILCS 5/5-5-3(b) (West 1996)). Section 5-5-3(b) lists eight
punishment options that are appropriate dispositions in criminal
cases. 730 ILCS 5/5-5-3(b) (West 1996). Bertalot held that
because fines and restitution were available on this list as
sentencing alternatives, they were dispositions that could stand
alone independent of a probation order. Bertalot, 164 Ill. App.
3d at 92-93, 518 N.E.2d at 470. Conversely, because public
service work was not available as a sentencing option under
section 5-5-3(b), but available only as a probation condition
under section 5-6-3(b), it was not an independent disposition.
Bertalot, 164 Ill. App. 3d at 93, 518 N.E.2d at 470. Bertalot
went on to state in dicta that only monetary conditions survived
because the statutory contempt provision of section 5-9-3 of the
Code (730 ILCS 5/5-9-3 (West 1996)) expressly provides that fines
can be enforced through contempt but makes no mention of nonmone-
tary conditions. Bertalot, 164 Ill. App. 3d at 93-94, 518 N.E.2d
at 470-71.
We agree with Bertalot to the extent that to survive
the period of probation as an independent disposition, the
punishment must exist as a sentencing alternative under section
5-5-3(b) of the Code. Forms of punishment that can only be
imposed in conjunction with probation orders cannot survive once
that probation order has expired. Defendant's AA and drug treat-
ment conditions here are not sentencing alternatives under
section 5-5-3(b). They are only available in conjunction with a
probation order pursuant to section 5-6-3(b). 730 ILCS 5/5-6-
3(b) (West 1996). Therefore, when defendant's probation period
expired, the trial court lacked subject-matter jurisdiction to
enforce those conditions. The order of contempt must be re-
versed.
We disagree with Bertalot, however, that only monetary
conditions can survive probation. We believe that certain non-
monetary punishments, such as a specific jail term, may be en-
forced after probation, if they are "independent conditions"
under section 5-5-3(b). See Brown, 142 Ill. App. 3d 712, 492 N.E.2d 238. Section 5-9-3(b) authorizes the use of contempt to
enforce the payment of a fine, but does not rule out the possi-
bility that contempt may be used to enforce other conditions of
probation after the period expires. 730 ILCS 5/5-9-3(b) (West
1996). The purpose of section 5-9-3 is to limit how long a court
may imprison someone in an attempt to coerce him or her to pay a
fine. The section did not address the use of contempt to enforce
nonmonetary conditions because it was not necessary. When a
court forces a probationer to fulfill a specific jail term, use
of the contempt power is unnecessary. The court simply puts the
defendant in jail for the specified term. Any of the independent
dispositions set out in section 5-5-3(b) may be enforced after
the expiration of the probation period, whether monetary or non-
monetary.
We reverse (1) because the court was attempting to
enforce conditions of probation after the expiration of the
period of probation, and those conditions were not independent of
probation. Our reversal of the trial court is also based (2) on
the ambiguity of the particular probation order. The probation
order does not state whether the AA and drug treatment conditions
were intended to survive the probationary period. One possible
view is that these conditions were intended as alternatives to
the 120 days' jail time and now are foreclosed from enforcement
because defendant has already served the 120 days. This uncer-
tainty breaches the rule that "a defendant is entitled to know
precisely what his sentence is [citation], and those charged with
execution of the sentence must be able to ascertain its meaning."
Brown, 142 Ill. App. 3d at 714, 492 N.E.2d at 240 (Harrison, J.,
dissenting). However, we would also reverse the trial court on
point (1) even if the ambiguity of the probation order were not
present.
For the reasons above stated, we reverse the judgment
of the circuit court of Champaign County.
Reversed.
McCULLOUGH, P.J., and STEIGMANN, J., concur.