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    "judges": [],
    "parties": [
      "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONALD E. THOMAS, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "JUSTICE GREEN\ndelivered the opinion of the court:\nOn May 8, 1990, following a jury trial in the circuit court of Moultrie County, defendant Ronald E. Thomas was convicted of driving under the influence of alcohol. On the day prior to trial, defendant entered a plea of guilty to possession of cannabis. Defendant was subsequently sentenced to concurrent terms of 18 months\u2019 probation, with one of the conditions of probation being that he serve 40 days in the county jail. Defendant was ordered to serve 10 days of the 40-day sentence at the beginning of his probation term, and the remaining 30 days could be waived by the probation department if defendant successfully completed a residential substance-abuse treatment program.\nDefendant maintains on appeal that his sentence is void, because the trial court gave the probation department discretion to determine whether he would be required to serve 30 days in jail, upon successful completion of a drug-abuse program, as one of the conditions of his probation. We vacate the sentence and remand for resentencing.\nInitially, defendant acknowledges that, with respect to the sentence imposed on the charge of unlawful possession of cannabis, he did not file a motion to withdraw his plea or a motion to reconsider his sentence as required by Supreme Court Rule 604(d) (134 Ill. 2d R. 604(d)) and the Illinois Supreme Court\u2019s interpretation of that rule in People v. Wallace (1991), 143 Ill. 2d 59, 570 N.E.2d 334. He further recognizes that he did not object to the sentence for driving under the influence of alcohol at the time it was imposed. He argues, nevertheless, that he has not waived the issue for purposes of appeal, because the sentence was void, and a void judgment may be attacked at any time. People v. Wade (1987), 116 Ill. 2d 1, 5, 506 N.E.2d 954, 955.\nThe determination of the terms and conditions of probation is a judicial function (People v. Brouhard (1972), 53 Ill. 2d 109, 290 N.E.2d 206; People v. Jones (1989), 185 Ill. App. 3d 208, 218, 541 N.E.2d 161, 167), and courts have no power to delegate a judicial function unless clearly authorized by law to do so. (Smallwood v. Soutter (1955), 5 Ill. App. 2d 303, 309, 125 N.E.2d 679, 683.) Since there is no authorization to delegate the decision to incarcerate a defendant, that part of defendant\u2019s sentence is void and must be vacated. The defendant was not required to raise the issue earlier.\nIn People v. Love (1980), 83 Ill. App. 3d 948, 404 N.E.2d 1085, the trial court sentenced the defendant to one year\u2019s probation. A condition of the probation was that defendant make restitution to the victim for the amount of medical expenses not covered by insurance. The amount of such restitution was to be computed by the probation department. On appeal, the court reversed and remanded for resentencing, stating that the trial court erred in delegating to the probation department the determination of the amount of restitution.\nHere, as in Love, the probation department was solely responsible for determining an integral part of defendant\u2019s sentence, i.e., whether he would spend the final 30 days in prison if he did not successfully complete the program. Although it is clear the court intended to remit the remaining 30 days\u2019 imprisonment upon defendant\u2019s successful completion of the program, it left to the probation department the decision as to whether defendant could be deemed to have been successful. This was not a function that could properly be delegated when the question of further incarceration is at stake.\nThe State argues Jones and People v. Williams (1981), 96 Ill. App. 3d 588, 421 N.E.2d 1039, to support the trial court\u2019s decision. In Jones, the defendant was convicted of unlawful delivery of cocaine and was ordered to undergo a drug and alcohol evaluation and to comply with any treatment recommended in the evaluation by the diagnostic center. The appellate court held there was no improper delegation of judicial authority, since the terms were set by the trial court. The Jones court noted the trial court did not delegate to the diagnostic center the determination of whether defendant should be evaluated or should comply with any recommended treatment. The only item left to the determination of the diagnostic center was an assessment of what, if any, treatment would benefit defendant. Regardless of whether we agree that the delegation of authority to the diagnostic center in Jones was proper, the degree of authority delegated here is much greater than that in Jones.\nIn Williams, the defendant was ordered to complete \u201c80 hours of public service work under the supervision\u201d of the probation department. (Williams, 96 Ill. App. 3d at 589, 421 N.E.2d at 1040.) This court determined that a trial court could properly rely on the probation department to supervise the work. The court noted it would place an \u201cunreasonable burden\u201d upon judges to require them to keep themselves sufficiently advised of the details of the public service work to make a determination as to when, where, and how the work was to be performed, and what the nature of the work should be. The court found the legislature to have implied delegation of this responsibility to probation officers. Williams, 96 Ill. App. 3d at 590-91, 421 N.E.2d at 1041.\nIn both Jones and Williams, the diagnostic center and probation department, respectively, merely supervised the defendants\u2019 probation and reported to the court whether the defendants were successful. Here, the court purported to give the probation department the power to waive the need for the defendant to serve the final 30 days in prison, if, in the opinion of the probation officer, he had successfully completed the program. Had the court required a hearing to determine whether defendant had successfully completed the program, so that the 30 days of additional incarceration could have been remitted, the analogy to Jones and Williams would have been appropriate.\nAccordingly, we vacate defendant\u2019s sentence and remand to the circuit court for resentencing.\nSentence vacated and remanded.\nLUND, P.J., and McCULLOUGH, J., concur.",
        "type": "majority",
        "author": "JUSTICE GREEN"
      }
    ],
    "attorneys": [
      "Daniel D. Yuhas and John Anthony Palombi, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.",
      "John Robinson, State\u2019s Attorney, of Sullivan (Kenneth R. Boyle, Robert J. Biderman, and Gwendolyn W. Klingler, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONALD E. THOMAS, Defendant-Appellant.\nFourth District\nNo. 4 \u2014 90\u20140530\nOpinion filed August 6, 1991.\nDaniel D. Yuhas and John Anthony Palombi, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nJohn Robinson, State\u2019s Attorney, of Sullivan (Kenneth R. Boyle, Robert J. Biderman, and Gwendolyn W. Klingler, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People."
  },
  "file_name": "0416-01",
  "first_page_order": 438,
  "last_page_order": 441
}