{
  "id": 2503748,
  "name": "The People of the State of Illinois, Plaintiff-Appellee, v. William Fleming, Defendant-Appellant",
  "name_abbreviation": "People v. Fleming",
  "decision_date": "1974-10-25",
  "docket_number": "No. 73-71",
  "first_page": "221",
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    "id": 8837,
    "name": "Illinois Appellate Court"
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  "last_updated": "2023-07-14T18:19:43.775116+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [],
    "parties": [
      "The People of the State of Illinois, Plaintiff-Appellee, v. William Fleming, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE RECHENMACHER\ndelivered the opinion of the court:\nDefendant represented by appointed counsel appeals from an order of the Circuit Court of Lake County revoking his probation, and imposing a sentence of 3 to 9 years for the offense of burglary. He also urges this court to \u201crelax\u201d our holding in People v. Nordstrom (1966), 73 Ill.App.2d 168, appeal dismissed (1967), 37 Ill.2d 270, so as to permit him to appeal the original judgment on his guilty plea to burglary.\nOn June 2, 1971, defendant, under indictment for burglary and represented by privately retained counsel, waived trial by jury and filed his application for treatment as a narcotics addict under section 1 et seq. of the Dangerous Drug Abuse Act (Ill. Rev. Stat. 1971, ch. 91%, par. 120.1 et seq.). Upon being notified of his acceptance for treatment by the Department of Mental Health the defendant came to court on June 25, again with privately retained counsel, and entered his plea of \u201cguilty\u201d to the charge of burglary. He was placed on 5 years\u2019 probation conditioned on the fact that he abide by the rules of the Department of Mental Health Drug Abuse Program, and that he comply with all of said department\u2019s orders and mandates.\nOn September 10 the State filed its petition to revoke defendant\u2019s probation for his failure to abide by those orders and after defendant was incarcerated the public defender was appointed to represent him. On November 21 a hearing was held on the State\u2019s petition and on November 30 the court entered its order continuing the 5-year probation and vacating defendant\u2019s treatment as an addict under the Drug Abuse Program, but directing the defendant, among other things, to take psychiatric treatment at tire Lake County Mental Health Clinic and to abide by its program.\nOn May 16, 1972, the State filed a petition to revoke probation because of defendant\u2019s failure to report to the Health Clinic during March and April as he was required to do under the Clinic\u2019s treatment program. Between that date and September 6, the date of the probation revocation hearing, defendant\u2019s brother Floyd appeared in court representing himself to be the defendant and the public defender was again appointed to represent the defendant. At the probation revocation hearing, which was combined with the hearing in aggravation and mitigation, defendant did not deny violation of probation but merely asked and received permission to offer evidence in mitigation. At the conclusion of the hearing the court revoked defendant\u2019s probation and sentenced him to a term of 3 to 9 years.\nWe first turn our attention to defendant\u2019s request that we reconsider and relax our holding in People v. Nordstrom, supra, and permit him to raise, in his appeal, his contention that at the hearing at which his guilty plea was accepted the trial court failed to admonish him in accordance with the requirements of Supreme Court Rule 402 (Ill. Rev. Stat. 1971, ch. 110A, par. 402). Defendant is aware that under Nordstrom such errors cannot be raised for the first time in an appeal from the revocation of a defendant\u2019s probation. We find no compelling basis for relaxing that ruling in this case. Since defendant had not exercised his right to appeal the judgment of the trial court entered on June 25, 1971, on his plea of guilty, at which time he was placed on probation for 5 years, he is precluded from raising this issue for review on his appeal from the judgment revoking his probation.\nIt is true, as defendant contends, that Supreme Court Rule 605 (Ill. Rev. Stat. 1971, ch. 110A, par. 605) amended effective September 1, 1970, in effect at the time of defendant\u2019s guilty plea, required the trial court to admonish defendant that \u201chis right to appeal will be preserved only if a notice of appeal is filed * * * within 30 days from the date of the sentence.\u201d It is also true that the record does not indicate that the trial court did so admonish defendant. However, the Illinois Supreme Court has held that the trial court\u2019s failure to give a defendant such notice does not raise a constitutional question and \u201cis not a denial of due process\u201d but merely \u201cstems from the dictates of good practice.\u201d (People v. Covington (1970), 45 Ill.2d 105.) Supreme Court Rule 605 was again amended effective July 1, 1971 (6 days after defendant made his guilty plea here), so as to provide in effect that in the case of a guilty plea the trial court was not required to inform the defendant of his right to appeal and that his right to appeal will be preserved only if notice of appeal is filed within 30 days from the date of sentence.\nIf gross errors have been committed by the trial court defendant is at liberty to challenge them by way of filing a petition in the trial court pursuant to the Post-Conviction Hearing Act (Ill. Rev. Stat. 1971, ch. 38, par. 122 \u2014 1 et seq.). That is the orderly process which-has been established and is available to the defendant. We do not intend to preempt the trial court\u2019s prior consideration of appropriate challenges to the administration of justice.\nNext the defendant contends that his minimum sentence should be reduced from 3 years to 1 year because the judge who imposed sentence was insufficiently familiar with the facts of the burglary conviction. Defendant calls attention to our statement in People v. Fields (1972), 8 Ill.App.3d 1045, 1048:\n\u201cAmong the factors to be considered by a trial court in impos- \u2022 ing a sentence are the circumstances attending the commission of the offense so that the court can properly assess the protection for the public and the potential rehabilitation of the- accused.\u201d\nWe continue to adhere to that view. Our examination of the record in the instant case demonstrates that the court was aware not only of the circumstances of the offense committed by the defendant to which he pled guilty, but of the reason for its commission and the defendant\u2019s rehabilitation potential. The judge had given defendant ample opportunity to become rehabilitated but without avail. Thereafter he heard the testimony of defendant\u2019s probation officer and saw and heard the defendant. The judge certainly was in a superior position to a reviewing court to consider and evaluate the likelihood of defendant\u2019s rehabilitation. Moreover the sentence is within the limits prescribed by the legislature and not in variance with the spirit of the law. (People v. Taylor (1972), 8 Ill.App.3d 727, 732; People v. Burbank (1972), 53 Ill.2d 261, 275. ) We cannot say that the minimum sentence imposed by the court was excessive.\nFinally the defendant contends that he should be given credit on his sentence for the time spent in custody and on probation. We agree. Section 5 \u2014 8\u20147(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005 \u2014 8\u20147(b)) provides for such credit \u201cfor time spent in custody as a result of the offense for which sentence was imposed.\u201d Section 5 \u2014 6\u20144(h) of-that code (par. 1005 \u2014 6\u20144(h)) provides for such credit for \u201c[t]ime served on probation.\u201d Defendant is therefore entitled to receive credit for the-time spent in custody and on probation prior to. the filing of .the petition for revocation. People v. Blake (1973), 15 Ill.App.3d 39, 44; People v. Decker (1973), 15 Ill.App.3d 230, 234.\nTherefore- the judgment of the trial court is affirmed and the cause is remanded with directions to modify the sentence so as to give credit for time spent in custody and on probation and to cause its mittimus to issue accordingly.\nAffirmed and remanded with directions.\nGUILD and SEIDENFELD, JJ., concur..",
        "type": "majority",
        "author": "Mr. JUSTICE RECHENMACHER"
      }
    ],
    "attorneys": [
      "Ralph Ruebner, of State Appellate Defender\u2019s Office, of Elgin, for appellant.",
      "Jack Hoogasian, State\u2019s Attorney, of Waukegan (James W. Jerz, of Model District State\u2019s Attorneys Office, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "The People of the State of Illinois, Plaintiff-Appellee, v. William Fleming, Defendant-Appellant.\n(No. 73-71;\nSecond District\nOctober 25, 1974.\nRalph Ruebner, of State Appellate Defender\u2019s Office, of Elgin, for appellant.\nJack Hoogasian, State\u2019s Attorney, of Waukegan (James W. Jerz, of Model District State\u2019s Attorneys Office, of counsel), for the People."
  },
  "file_name": "0221-01",
  "first_page_order": 245,
  "last_page_order": 249
}