{
  "id": 5268339,
  "name": "People of the State of Illinois, Defendant in Error, v. Ronald Franciere, Plaintiff in Error",
  "name_abbreviation": "People v. Franciere",
  "decision_date": "1964-04-15",
  "docket_number": "Gen. No. 49,397",
  "first_page": "436",
  "last_page": "440",
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    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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    "name_long": "Illinois",
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  "last_updated": "2023-07-14T21:56:16.449907+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "DRUCKER and MoCORMICK, JJ., concur."
    ],
    "parties": [
      "People of the State of Illinois, Defendant in Error, v. Ronald Franciere, Plaintiff in Error."
    ],
    "opinions": [
      {
        "text": "MR. PRESIDING JUSTICE ENGLISH\ndelivered the opinion of the court.\nThis is a combined appeal from a revocation of defendant\u2019s probation and dismissal of his post-conviction petition.\nAfter a sanity hearing, defendant was permitted to plead guilty to three indictments charging auto theft, and on March 27, 1961 he was placed on probation for five years. In addition to the usual statutory conditions of probation (e. g\\, that the probationer not violate any criminal law; that he report periodically to his Probation Officer), the court also provided, among other conditions, the following:\n(1) To submit to psychiatric care until cured. Report monthly.\n(3) To be gainfully employed.\n(4) Monthly church attendance.\nOn May 7,1962, on petition of the Probation Officer, a rule was issued on defendant to show cause why his probation should not be revoked. The bases for the rule were that:\n(1) Defendant was charged with burglary in the Municipal Court of Chicago. The charge was nolle prossed as defendant was in the Illinois State Psychopathic Institute.\n(2) Two months later defendant was discharged from the Institute and a Social Worker there advised the Probation Officer that defendant \u201chad failed in their program\u201d; that he had had sexual relations with female patients.\n(3) \u201cThe defendant was a poor Catholic but accepted help from St. Vincent DePaul.\u201d\n(4) An employee at the Welfare Commission advised the Probation Officer that \u201cdefendant had gone to the Bethany Lutheran Church, Thorn-dale and Magnolia asking for help and berating the Catholic Church.\u201d\n(5) An ambiguous charge from which it might be inferred that defendant had failed to report properly to the Probation Officer.\nAnother Behaviour Clinic examination of defendant was ordered and the rule to show cause came on for hearing on May 28, 1962. Defendant was present but without counsel as he had expected to be represented by the Public Defender who was absent. A lawyer friend of defendant\u2019s family was in court as a spectator, but had not been retained to represent defendant. Apparently on the misunderstanding that this lawyer was acting as counsel for defendant, the court proceeded with the hearing. At its conclusion defendant\u2019s probation was revoked in all three cases, and he was sentenced to the penitentiary for concurrent terms of two to six years.\nIn the light of this court\u2019s decision in People v. Burrell, 334 Ill App 253, 258, 79 NE2d 88; other decisions, including Gideon v. Wainwright, 372 US 335; Douglas v. California, 372 US 353; and the language of the statute governing such a hearing, which provides that the probationer\u2019s \u201cright to have counsel shall be the same as in the action which resulted in such probation\u201d (Ill Rev Stats, c 38, \u00a7 789.1); the State\u2019s Attorney has filed in this court a Confession of Error that the hearing in question was \u201cconducted in violation of [defendant\u2019s] statutory and constitutional rights to counsel.\u201d\nDefendant has raised a second point, however, which is not expressly covered by the Confession of Error and which we feel obliged to consider. That point is that, regardless of the absence of counsel, there was nothing which transpired at the hearing which justified revocation of defendant\u2019s probation. We agree.\nAgain referring to the statute controlling this type of hearing, we find that the discretionary authority of the court to revoke probation and impose sentence arises only \u201cwhen the court determines from a preponderance of the evidence that probation has been violated.\u201d (Emphasis supplied.) Ill Rev Stats, c 38, \u00a7 789.1. In the instant case no testimony was taken and no evidence of any kind was introduced. We are, therefore, compelled to hold that since the revocation order lacks an evidentiary basis, it cannot stand.\nFrom the colloquy among court, state\u2019s attorney, probation officer and defendant, as shown by the record, we gather that there was no real concern over the possibility that defendant might have committed a burglary. Nor could it be said that defendant\u2019s reporting to the probation officer was anything worse than irregular or sporadic, due perhaps to his wanting to avoid loss of time from work. We sense, however, a conscientious and genuine concern on the part of the court that defendant might have violated the discretionary conditions of probation which were included in the original order and which are set forth in the second paragraph of this opinion. We feel we should point out that the paragraph of the statute which authorizes the imposition of such conditions provides also that their violation \u201cshall not be ground for revoking the order admitting the defendant [to probation], but shall be deemed in contempt of the Court and defendant may be proceeded against as in other cases of contempt.\u201d Ill Rev Stats, c 38, \u00a7 787. While this provision has been repealed as of January 1, 1964 and it has no counterpart in the new Code of Criminal Procedure (see c 38, \u00a7\u00a7 117-2 and 117-3) it is our opinion that the repealed statute controlled this case. Ill Rev Stats, c 38, \u00a7 \u00a7 125-3 and 125-4.\nDefendant has also filed a petition for writ of error to review dismissal of his post-conviction petition which pertains exclusively to matters involved in the proceedings which resulted in revocation of probation. Since these were not the \u201cproceedings which resulted in his conviction\u201d the Post-Conviction Hearing Act is not applicable and the petition was properly dismissed. Ill Rev Stats, c 38, \u00a7\u00a7 826, 122-1; Supreme Court Miscellaneous Order No. 3460, People v. Freeman. Writ of error in the post-conviction proceeding is, therefore, denied.\nThe orders revoking defendant\u2019s probation and sentencing him to the penitentiary are reversed.\nReversed in part, writ of error denied in part.\nDRUCKER and MoCORMICK, JJ., concur.",
        "type": "majority",
        "author": "MR. PRESIDING JUSTICE ENGLISH"
      }
    ],
    "attorneys": [
      "Julius Lucius Echeles, of Chicago, for plaintiff in error.",
      "Daniel P. Ward, State\u2019s Attorney, of Chicago (James Thompson, Assistant State\u2019s Attorney, of counsel), for defendant in error."
    ],
    "corrections": "",
    "head_matter": "People of the State of Illinois, Defendant in Error, v. Ronald Franciere, Plaintiff in Error.\nGen. No. 49,397.\nFirst District, Fourth Division.\nApril 15, 1964.\nJulius Lucius Echeles, of Chicago, for plaintiff in error.\nDaniel P. Ward, State\u2019s Attorney, of Chicago (James Thompson, Assistant State\u2019s Attorney, of counsel), for defendant in error."
  },
  "file_name": "0436-01",
  "first_page_order": 452,
  "last_page_order": 456
}