Supreme Court Summaries

Opinions filed December 1, 2011

People v. Hammond, 2011 IL 110044

Appellate citations: Hammond, 397 Ill. App. 3d 342.

Alberty, No. 1-08-1149 (unpublished order under Supreme Court Rule 23).

JUSTICE KARMEIER delivered the judgment of the court, with opinion.

Chief Justice Kilbride and Justices Freeman, Thomas, Garman, Burke, and Theis concurred in the judgment and opinion.

In Cook County, Fermin Alberty's probation for possession of heroin with intent to deliver was revoked in 2007 after his probation officer filed papers with the circuit court indicating that Alberty was not attending required meetings. On appeal, Alberty argued that only the State's Attorney had authority to seek probation revocation, but he was not successful. The appellate court affirmed the revocation, and Alberty appealed to the supreme court.

In Livingston County, the Eleventh Judicial Circuit had adopted, pursuant to the Unified Code of Corrections, a system of structured, intermediate sanctions for the handling of nonfelony violations of probation without recourse to revocation. Each offender here accepted and completed the program offered to him by a probation officer, and the Code provides that a court may not revoke probation if such requirements are complied with. However, the State's Attorney went ahead and filed a petition to revoke in each case. The defendants all filed motions to dismiss, and, in 2007 and 2008, were successful. The appellate court affirmed, finding in favor of the defendants, and the State is the appellant as to them.

In this decision, the supreme court affirmed all the results reached below. It held that probation officers possess statutory authority to file petitions charging a violation of probation, as was done in Cook County concerning Alberty. As to the Livingston County appeals, the court held that the Code does not give a State's Attorney the power to "veto" a probation officer's decision to offer intermediate sanctions, so long as those requirements are timely completed. This construction of the statutory law does not violate separation of powers principles or usurp the authority of the executive branch.

The supreme court said that both probation officers and State's Attorneys are statutorily authorized to present probation violations to the circuit court, but the ultimate authority to revoke, impose lesser sanctions, or to do nothing at all in response to a violation lies in the judicial branch. The court also noted that the State's Attorney is always free to bring an independent prosecution for any conduct constituting a misdemeanor if the State believes the charge has merit and the offense elements can be proven beyond a reasonable doubt.