{
  "id": 5555837,
  "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL LOVE, Defendant-Appellant",
  "name_abbreviation": "People v. Love",
  "decision_date": "1980-05-09",
  "docket_number": "No. 79-834",
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  "last_updated": "2023-07-14T21:00:47.613815+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. MICHAEL LOVE, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE SCOTT\ndelivered the opinion of the court:\nAfter bench trial in Whiteside County, Michael Love, the defendant, was found guilty of the offense of aggravated battery and sentenced to one year probation. A condition of his probation was that he 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.\nIn the defendant\u2019s trial it was established that the defendant and one Brickie on the evening of January 26, 1979, were involved in a fight in which the defendant fared poorly and was struck in the face. After leaving the scene of the altercation and while in the company of friends the defendant threatened to assault Brickie with a knife if he had another confrontation with him. Later in the evening the defendant sought out Brickie and upon locating him made a statement to the effect that he didn\u2019t want to fight but only wanted to talk. Brickie responded by advising the. defendant that he should leave the area. The defendant refused to leave and Brickie initiated a second fight. The defendant again fared poorly and was forced into a street, then across a traffic lane to a median strip. Upon reaching this strip the defendant pulled a pocket knife from his pocket, opened it and began swinging and stabbing at Brickie. The defendant stabbed Brickie four or five times and ultimately . the victim Brickie fell to the ground, at which time the defendant fled from the scene.\nIn this appeal it is the defendant\u2019s contention that his use of force was justified pursuant to section 7 \u2014 1 of the Criminal Code of 1961 (111. Rev. Stat. 1977, ch. 38, par. 7 \u2014 1), which provides:\n\u201cA person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other\u2019s imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony.\u201d Ill. Rev. Stat. 1977, ch. 38, par. 7 \u2014 1.\nWe cannot agree with this contention of the defendant, for it is abundantly clear from the record that the defendant, while armed with a knife, consciously and actively sought out the victim with the expressed intent of using a knife should a second confrontation occur. The defendant was fully aware of the fact that the victim had a reputation for violent tendencies, yet after his first encounter with him he persisted in again meeting him and ignored a warning that he should leave the area.\nA case quite similar to the instant one is People v. Munguia (1975), 33 Ill. App. 3d 880, 338 N.E.2d 574. In Munguia the reviewing court approved a trial court\u2019s instruction which stated:\n\u201c \u2018A person is not justified in the use of force if he initially provokes the use of force against himself with the intent to use that force as an excuse to inflict bodily harm upon the other person.\u2019 \u201d 33 Ill. App. 3d 880, 883, 338 N.E.2d 574, 577.\nIn regard to this instruction the reviewing court in Munguia concluded:\n\u201cThe instruction properly informed the jury that if it found the defendant was being threatened by the victim just prior to the stabbing, that this finding would not excuse the stabbing if the jury further found defendant provoked such conduct by his reentry into the tavern with a knife.\u201d 33 Ill. App. 3d 880, 884, 338 N.E.2d 574, 577.\nA further discussion of the defendant\u2019s action in this case would be repetitious. In the light of the law set forth in Munguia the defendant provoked the use of force against himself by seeking out the victim Brickie and thereby placing himself in a volatile situation. The defendant\u2019s conduct was not such as to be justified by falling within the ambit of our statutory provision relating to the use of force in defense of one\u2019s person. Ill. Rev. Stat. 1977, ch. 38, par. 7 \u2014 1.\nThe defendant presents for review several ancillary issues to the effect that he was not required to retreat when attacked and that his use of a weapon (the knife) was necessary to prevent the commission of a forcible felony. We find no merit in these assertions of the defendant and further deem them to be moot since we have determined that he provoked the altercation by his conduct.\nThe defendant further asserts that public policy is opposed to his conviction. This argument is unimpressive since the converse could be true in that public policy requires that violators of the law be convicted.\nThe defendant further argues that the trial court erroneously delegated judicial authority to the probation department by ordering that department to determine the amount of restitution to be paid to the victim. With this argument we agree since determining the terms and conditions of probation is a judicial function. (People v. Brouhard (1972), 53 Ill. 2d 109, 290 N.E.2d 206.) In Brouhard our supreme court implicitly recognized that sentencing is constitutionally a judicial function. Courts have no power to delegate judicial functions unless clearly authorized by law. Smallwood v. Soutter (1955), 5 Ill. App. 2d 303, 125 N.E.2d 679.\nFor the reasons stated the conviction of the defendant by the circuit court of Whiteside County is affirmed; however, this case is remanded to said court for proper resentencing.\nConviction affirmed; remanded for resentencing.\nSTENGEL and STOUDER, JJ., concur.",
        "type": "majority",
        "author": "Mr. JUSTICE SCOTT"
      }
    ],
    "attorneys": [
      "James L. Reese, of Blodgett & Reese, of Rock Falls, for appellant.",
      "Timothy J. Slavin, State\u2019s Attorney, of Morrison (John X. BresHirand Gary F. Gnidovec, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL LOVE, Defendant-Appellant.\nThird District\nNo. 79-834\nOpinion filed May 9, 1980.\nJames L. Reese, of Blodgett & Reese, of Rock Falls, for appellant.\nTimothy J. Slavin, State\u2019s Attorney, of Morrison (John X. BresHirand Gary F. Gnidovec, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People."
  },
  "file_name": "0948-01",
  "first_page_order": 970,
  "last_page_order": 973
}