{ "id": 4270375, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRETT T. KELLEMS, Defendant-Appellant", "name_abbreviation": "People v. Kellems", "decision_date": "2007-06-21", "docket_number": "No. 4-06-0824", "first_page": "1129", "last_page": "1133", "citations": [ { "type": "official", "cite": "373 Ill. App. 3d 1129" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "655 N.E.2d 321", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 7, "year": 1995, "pin_cites": [ { "page": "322" }, { "page": "323" }, { "page": "323" }, { "page": "323" }, { "page": "323" }, { "page": "323" } ], "opinion_index": 0 }, { "cite": "274 Ill. App. 3d 805", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 291576 ], "weight": 7, "year": 1995, "pin_cites": [ { "page": "806" }, { "page": "807" }, { "page": "808" }, { "page": "808" }, { "page": "808" }, { "page": "808" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/274/0805-01" ] }, { "cite": "554 N.E.2d 1376", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "pin_cites": [ { "page": "1378", "parenthetical": "where the supreme court noted that section 5 - 6-4 of the Unified Code is silent regarding who may file a petition to revoke probation but concluded that the defendant in that case had no authority to do so; otherwise, the defendant could, at her convenience, burden the State" } ], "opinion_index": 0 }, { "cite": "136 Ill. 2d 248", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3255149 ], "year": 1990, "pin_cites": [ { "page": "255" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/136/0248-01" ] }, { "cite": "851 N.E.2d 26", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "31" } ], "opinion_index": 0 }, { "cite": "221 Ill. 2d 282", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5703639 ], "pin_cites": [ { "page": "289" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/221/0282-01" ] } ], "analysis": { "cardinality": 392, "char_count": 8240, "ocr_confidence": 0.738, "pagerank": { "raw": 7.874389886588898e-08, "percentile": 0.45993434366250696 }, "sha256": "5dbf94f7a554f4f91a3a6be51fa1632b35d7860dd3eb75bca4590d21d7631d8d", "simhash": "1:bbee35d002e5376f", "word_count": 1340 }, "last_updated": "2023-07-14T16:22:18.400209+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRETT T. KELLEMS, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE STEIGMANN\ndelivered the opinion of the court:\nIn January 2004, defendant, Brett T. Kellems, pleaded guilty to driving under the influence of alcohol (DUI) (625 ILCS 5/11 \u2014 501 (West 2004)), and the trial court sentenced him to 18 months\u2019 court supervision. In July 2005, a probation officer filed a petition to revoke defendant\u2019s supervision. In March 2006, defendant filed a motion to dismiss the petition to revoke his supervision, arguing that because the probation officer did not have the authority to file the petition, the court did not have jurisdiction to entertain it. The court denied defendant\u2019s motion, found that he violated the terms of his supervision, and entered a judgment of conviction. The court later imposed a $250 fine upon defendant.\nDefendant appeals, arguing that the trial court erred by denying his motion to dismiss the petition to revoke his supervision. We agree and reverse.\nI. BACKGROUND\nAs previously stated, in January 2004, defendant pleaded guilty to DUI, and in February 2004, the trial court sentenced him to 18 months\u2019 court supervision. In July 2005, Paul Wisovaty, a Douglas County probation officer, filed a petition to revoke defendant\u2019s supervision, alleging that defendant violated two terms of the supervision order. Specifically, Wisovaty alleged that defendant violated provisions of the supervision order that prohibited his (1) violating any criminal statute and (2) consuming any amount of alcoholic beverage.\nIn March 2006, defendant filed a motion to dismiss the petition to revoke his supervision on the ground that a probation officer does not have the authority to file such a petition. Specifically, defendant asserted that (1) only the Douglas County State\u2019s Attorney had authority to file a petition to revoke supervision, (2) the July 2005 petition to revoke his supervision filed by Wisovaty was a nullity, and (3) his period of supervision expired in August 2005, at which time no petition to revoke had been filed by the State\u2019s Attorney.\nIn June 2006, the trial court denied defendant\u2019s motion to dismiss. Later, following a hearing on the petition to revoke defendant\u2019s supervision, the court found that defendant violated the conditions of his order of supervision. The court then revoked defendant\u2019s supervision and entered a judgment of conviction. Following an August 2006 sentencing hearing, the court imposed a $250 fine on defendant.\nThis appeal followed.\nII. THE TRIAL COURT\u2019S RULING ON DEFENDANT\u2019S MOTION TO DISMISS\nDefendant argues that the trial court erred by denying his motion to dismiss the petition to revoke his supervision. Specifically, he contends that a probation officer does not have the authority to file a petition to revoke supervision. We agree.\nBecause we are reviewing the trial court\u2019s determination of an issue of law, i.e., whether a probation officer may file a petition to revoke supervision, our review is de novo. See People v. Caballes, 221 Ill. 2d 282, 289, 851 N.E.2d 26, 31 (.2006) (questions of law are subject to de novo review).\nThis court is not aware of any Illinois authority addressing whether a probation officer may file a petition to revoke supervision. Section 12 of the Probation and Probation Officers Act (730 ILCS 110/12 (West 2004)), which lists the duties of a probation officer, does not contain a provision empowering a probation officer to file a petition to revoke supervision. In addition, section 5 \u2014 6\u20144 of the Unified Code of Corrections (730 ILCS 5/5 \u2014 6\u20144 (West 2004)) is silent as to who may file a petition to revoke supervision. See People v. Dinger, 136 Ill. 2d 248, 255, 554 N.E.2d 1376, 1378 (1990) (where the supreme court noted that section 5 \u2014 6\u20144 of the Unified Code is silent regarding who may file a petition to revoke probation but concluded that the defendant in that case had no authority to do so; otherwise, the defendant could, at her convenience, burden the State). Moreover, the State\u2019s Attorney\u2019s powers and duties are set forth in section 3 \u2014 9005 of the Counties Code, which directs and empowers the State\u2019s Attorney to \u201ccommence and prosecute all actions\u201d (55 ILCS 5/3\u2014 9005(a)(1) (West 2004)).\nDefendant relies, in part, on this court\u2019s decision in People v. Birt, 274 Ill. App. 3d 805, 655 N.E.2d 321 (1995), to support his contention that a probation officer does not have the authority to file a petition to revoke supervision. In that case, the State\u2019s Attorney filed a motion to modify the conditions of the defendant\u2019s probation. Birt, 274 Ill. App. 3d at 806, 655 N.E.2d at 322. The defendant argued on appeal that section 5 \u2014 6\u20144(f) of the Unified Code (730 ILCS 5/5 \u2014 6\u20144\u00a9 (West 1992)) (which explicitly grants the authority to file a petition to modify probation to the trial court, a defendant, or a probation officer) does not give the State\u2019s Attorney the authority to file such a motion. Birt, 274 Ill. App. 3d at 807, 655 N.E.2d at 323.\nThis court rejected the defendant\u2019s argument, upon concluding that because the State\u2019s Attorney\u2019s authority to file motions to modify the conditions of probation was so obvious, the legislature did not deem it necessary to expressly provide that State\u2019s Attorneys are among those who may file a motion under section 5 \u2014 6\u20144(f) of the Unified Code. Birt, 274 Ill. App. 3d at 808, 655 N.E.2d at 323. In so concluding, this court explained as follows:\n\u201cInstead, the legislature named the entities it did \u2014 the court, probation officer, or defendant \u2014 to specify that, in addition to the State\u2019s Attorney, entities who might normally not be thought of as empowered to file such a motion may in fact do so.\u201d (Emphasis in original.) Birt, 274 Ill. App. 3d at 808, 655 N.E.2d at 323.\nIn rejecting the defendant\u2019s argument, this court noted that section 3 \u2014 9005 of the Counties Code, which, as noted above, describes the powers and duties of the State\u2019s Attorney, provides that the State\u2019s Attorney shall \u201c \u2018commence and prosecute all actions, suits, indictments[,] and prosecutions, civil and criminal, in the circuit court for his county, in which the people of the State or county may be concerned.\u2019 \u201d Birt, 274 Ill. App. 3d at 808, 655 N.E.2d at 323, quoting 55 ILCS 5/3 \u2014 9005(a)(1) (West 1992). We also noted that \u201c[bjecause a motion to amend probation constitutes a continuation of a criminal case, the People of the State of Illinois continue to be represented by the State\u2019s Attorney in all proceedings concerning such a motion.\u201d Birt, 274 Ill. App. 3d at 808, 655 N.E.2d at 323.\nThe State contends it is not unusual for persons other than the State\u2019s Attorney to initiate legal proceedings, with the State\u2019s Attorney then prosecuting those proceedings. Examples of such proceedings include traffic complaints filed by police officers and criminal complaints filed by private citizens. See 725 ILCS 5/111 \u2014 3(b) (West 2004). However, these examples weaken the State\u2019s argument because in each instance the legislature has explicitly authorized action that may be taken by persons other than the State\u2019s Attorney.\nConsistent with our reasoning in Birt, we conclude that if the legislature had intended anyone other than the State\u2019s Attorney (whose authority is necessarily implied) to have authority to file a petition to revoke supervision, it could have said so. However, the legislature has not chosen to explicitly empower probation officers with such authority. We thus conclude that Wisovaty lacked authority to file the petition to revoke defendant\u2019s supervision, and the trial court lacked authority to consider that petition. Accordingly, we reverse the court\u2019s order revoking defendant\u2019s supervision.\nIII. CONCLUSION\nFor the reasons stated, we reverse the trial court\u2019s judgment.\nReversed.\nMYERSCOUGH and TURNER, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE STEIGMANN" } ], "attorneys": [ "James A. Martinkus (argued), of Erwin, Martinkus & Cole, Ltd., of Cham-paign, for appellant.", "Kevin E Nolan, State\u2019s Attorney, of Tuscola (Norbert J. Goetten, Robert J. Biderman, and Thomas R. Dodegge (argued), 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. BRETT T. KELLEMS, Defendant-Appellant.\nFourth District\nNo. 4-06-0824\nArgued May 15, 2007.\nOpinion filed June 21, 2007.\nJames A. Martinkus (argued), of Erwin, Martinkus & Cole, Ltd., of Cham-paign, for appellant.\nKevin E Nolan, State\u2019s Attorney, of Tuscola (Norbert J. Goetten, Robert J. Biderman, and Thomas R. Dodegge (argued), all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "1129-01", "first_page_order": 1147, "last_page_order": 1151 }