{
  "id": 2687047,
  "name": "The People of the State of Illinois, Plaintiff-Appellee, v. James Yarbar, a/k/a James Yarbrough (Impleaded), Defendant-Appellant",
  "name_abbreviation": "People v. Yarbar",
  "decision_date": "1973-08-10",
  "docket_number": "No. 57689",
  "first_page": "267",
  "last_page": "269",
  "citations": [
    {
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      "cite": "14 Ill. App. 3d 267"
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  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
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    {
      "cite": "294 N.E.2d 269",
      "category": "reporters:state_regional",
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    {
      "cite": "53 Ill.2d 447",
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      "cite": "245 N.E.2d 13",
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    },
    {
      "cite": "105 Ill.App.2d 14",
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      "reporter": "Ill. App. 2d",
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        1598870
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  "last_updated": "2023-07-14T18:15:06.021527+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "The People of the State of Illinois, Plaintiff-Appellee, v. James Yarbar, a/k/a James Yarbrough (Impleaded), Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE ENGLISH\ndelivered the opinion of the court:\nDefendant was originally charged with armed robbery. However, on an accepted plea of guilty to the lesser included offense of robbery, judgment was entered on December 22, 1970, and defendant was admitted to probation for five years on condition that the first year be served in the county jail. Ill. Rev. Stat. 1969, ch. 38, par. 18 \u2014 1.\nOn December 7, 1971, defendant and others were arrested and subsequently indicted for burglary of the Morton Public School in Chicago. On motion of the State\u2019s Attorney, the court issued a rule to show cause why defendant\u2019s probation should not be terminated. A hearing was held at which six police personnel testified in regard to defendant\u2019s guilt of the burglary charge, and defendant testified in denial. Defendant\u2019s probation was revoked and he was sentenced to a term of 5 to 10 years on his original robbery conviction.\nFrom this order defendant has appealed, contending primarily that he had been denied due process by having his guilt of burglary decided in a probation revocation hearing prior to a trial on that charge, his reasons being that at such a trial he would have been entitled to a jury and the quantum of proof would have been beyond a reasonable doubt rather than only by a preponderance of the evidence. Defendant also makes the point that the sentence was excessive, because, he argues, it appears actually to have been related to the burglary rather than the robbery.\nAs to the first point, defendant\u2019s brief concedes, by the absence of any argument to the contrary, that the guilt of defendant on the burglary charge was established by a preponderance of the evidence (though not beyond a reasonable doubt), and that this court\u2019s decision in People v. Smith, 105 Ill.App.2d 14, 18, 245 N.E.2d 13, was adverse to defendant\u2019s primary position that due process would require trial on the second substantive charge prior to a hearing on probation revocation. While defendant earnestly and capably urges us to reconsider the issue, his arguments will not be specifically answered, as we agree with the Smith opinion. Furthermore, since the filing of defendant\u2019s brief, the supreme court decided People v. Crowell, 53 Ill.2d 447, 292 N.E.2d 721, in which a revocation of probation was upheld, and the clear implication of the opinion was that there had not previously been a trial of the defendant for the act of theft which constituted the basis for the revocation. The Crowell opinion also, in effect, decided the balance of defendant\u2019s due process contention, in accord with the Smith decision, when it stated at page 451:\n\u201cSince this court has never before ruled on the precise question of what the quantum of proof should be in a probation revocation proceeding, and in the absence of statutory provision therefore (Ill. Rev. Stat. 1971, ch. 38, par. 117 \u2014 1 et seq.), we hold that a violation of the conditions of probation must be proved by a preponderance of the evidence.\nWe note, moreover, that the General Assembly has specifically incorporated this standard in the new Illinois Code of Corrections (Ill. Rev. Stat. 1971, ch. 38, par. 1005 \u2014 6\u20144(c); P. A. 77 \u2014 2097), effective January 1, 1973.\u201d\nWe believe (also in accord with the Smith case) that defendant\u2019s contention is without merit as to the reason why he claims his sentence was excessive. Nevertheless, we do conclude that, this case not having reached final adjudication, the ratio between the minimum and maximum of defendant\u2019s sentence (one to two) cannot stand, since it may not now be less than one to three under the Unified Code of Corrections. (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1005 \u2014 8\u20141(c)(4).) We therefore affirm the judgment revoking defendant\u2019s probation, but remand the cause to the circuit court with direction to resentence defendant in accordance with the currently effective sentencing statute. See People v. Harvey, 53 Ill.2d 585, 294 N.E.2d 269.\nAffirmed and remanded with directions.\nLORENZ and SULLIVAN, JJ., concur.\nThe burglary indictment was thereupon dismissed on motion of the State.",
        "type": "majority",
        "author": "Mr. JUSTICE ENGLISH"
      }
    ],
    "attorneys": [
      "James J. Doherty, Public Defender, of Chicago, (Shelvin Singer, Assistant Public Defender, of counsel,) for appellant.",
      "Bernard Carey, State\u2019s Attorney, of Chicago, (Kenneth L. Gillis and Sharon H. Grossman, Assistant State\u2019s Attorneys, of counsel,) for the People."
    ],
    "corrections": "",
    "head_matter": "The People of the State of Illinois, Plaintiff-Appellee, v. James Yarbar, a/k/a James Yarbrough (Impleaded), Defendant-Appellant.\nNo. 57689\nFirst District (5th Division)\nAugust 10, 1973.\nRehearing denied September 5, 1973.\nJames J. Doherty, Public Defender, of Chicago, (Shelvin Singer, Assistant Public Defender, of counsel,) for appellant.\nBernard Carey, State\u2019s Attorney, of Chicago, (Kenneth L. Gillis and Sharon H. Grossman, Assistant State\u2019s Attorneys, of counsel,) for the People."
  },
  "file_name": "0267-01",
  "first_page_order": 289,
  "last_page_order": 291
}