Court: Appellate Court of Illinois; November 1, 1979; Illinois; State Appellate Court
Defendant John Grant, Jr. appeals an order vacating a prior decision that terminated his probation for reckless homicide, which he received in September 1976. He sought early termination of probation on January 20, 1978, but shortly after, the State moved to revoke it due to a pending theft charge against him. A hearing on February 2, 1978, led by Judge Phillip Locke, who had originally sentenced Grant, resulted in support for termination from Grant’s probation officer, who termed him a “model probationer” and noted his progress in addressing his drinking problem. The State's request for a continuance during the hearing was denied, and they presented no direct evidence against Grant, who testified positively about his probation conduct. Judge Locke ordered the immediate termination of probation before retiring the next day.
Subsequently, the State filed a motion to vacate the termination, which was reviewed by Judge William Hopf, who vacated the order and mandated a hearing for probation revocation. In his appeal, Grant raises three issues: (1) whether a new judge can vacate a retired judge's order; (2) if a hearing is required upon the State's petition to revoke probation; and (3) the sufficiency of evidence supporting the early termination order. The defendant argues that the State's action constituted an improper collateral attack on Judge Locke's order. However, the court clarified that the principle against one judge reviewing another's order does not apply when the original judge is unavailable. Citing Illinois Supreme Court precedent, the court emphasized that judicial jurisdiction remains with the court itself, not individual judges, allowing for reconsideration despite a judge's retirement.
A court has jurisdiction to vacate an order regardless of whether the original judge or a successor presided, as established in case law. Under relevant statutes and Supreme Court rules, circuit courts can reconsider final judgments within 30 days. In this case, the State sought to vacate an order from Judge Locke within that timeframe, and due to Judge Locke's retirement, the case was reassigned to Judge Hopf. This reassignment was appropriate, granting Judge Hopf jurisdiction to vacate the order.
The primary issue addressed was whether a hearing was required following the State's petition to revoke the defendant's probation. The statute stipulates that upon filing a petition for a violation, the court must issue a summons or warrant, and a hearing must be conducted. The term "shall" in this context is interpreted as mandatory, indicating that a hearing is required even if there is a concurrent petition to terminate probation.
The defendant argued that the previous hearing could be considered as addressing both petitions; however, the court found that the February 2 hearing did not satisfy the statutory requirement for a hearing on the revocation petition, as the State was unprepared and unable to present evidence. Consequently, Judge Hopf's order vacating the termination of probation and mandating a hearing on the revocation petition was affirmed. The court did not address whether the termination order itself was against the manifest weight of the evidence. Judges Guild and Nash concurred with this decision.
