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Nos. 1-00-3825 and 1-00-3826

Consolidated

JUSTICE REID delivered the opinion of the court:

In July 1998, defendant pleaded guilty to two narcoticscharges and was sentenced to probation for two years. Ultimately, his probation was revoked, and he was sentenced toprison for concurrent three-year terms. The issue presented onreview is whether the trial court acted properly when it revokedprobation because, as defendant argues, his probationary term hadalready expired before the petitions to revoke were filed.

On October 15, 1998, defendant appeared in court chargedwith a violation of probation. He entered an admission to thecharge, his original probationary sentence was revoked, and aspart of the parties' agreement, he received an 18-month term inthe "rehabilitation alternative probation" program (RAP).⁽¹⁾ Thisprogram required defendant to sign a contract whereby he agreedto undergo substance abuse treatment, complete educationalprograms and seek employment. Defendant also agreed to submit torandom medical tests to determine whether he had used illicitdrugs. The final contractual term provided that any report ofdefendant's noncompliance would permit the trial court to, interalia, "otherwise modify or revoke any treatment plan or sentenceof probation." Over the following months defendant reported tothe court, informing the court of his successes and failuresregarding his attempts to remain drug free and his employmentrecord. During those times, the court would encouragedefendant's positive efforts or be highly critical when herelapsed into drug usage. On March 15, 2000, defendant appearedin court without counsel and agreed to have his probationextended until October 13, 2000, with the court telling defendantthat he was going to receive more treatment for his drug problem.

The report of proceedings for September 28, 2000, indicatesthat defendant twice had recently tested positive for opiateusage, and although not contained in the record on appeal, twopetitions had been filed against him by the State. Defendant wasremanded into custody. On November 1, 2000, defendant filed amotion for his discharge and to terminate probation.⁽²⁾ Defendantclaimed in his motion that when his RAP term was extended onMarch 15, 2000, there was no pending petition alleging aviolation of probation and the trial court never concluded thatdefendant had violated his probation. As a result of theseshortcomings, defendant argued that the trial court lackedauthority to extend his probation. Defendant maintained that his18-month RAP term therefore remained in effect and expired onApril 15, 2000. Consequently, defendant believed that the trialcourt thereafter lacked jurisdiction over him, and it could notrevoke his probation in November 2000 without violating his rightto due process. The trial court rejected defendant's position. The court relied on defendant's signed agreement permitting thecourt to take such action. The court then went on to review whathad occurred during the probationary period including itsrecollection that just before his probation was extended byagreement, defendant had tested positive and had admitted to drugusage. At this time in court, defendant then agreed to extendhis probationary program. However, during this extension,defendant used drugs and failed to report, and a petition wasfiled to hold defendant in violation of his probation.

Defendant now appeals raising basically the same argumentsthat he presented to the trial court. Basically, defendant saysthat a probationary term cannot be extended or revoked withoutnotice, a hearing and a finding that the probationer has violatedthe terms of his probation. Furthermore, defendant maintainsonce the probationary term expires, the trial court'sjurisdiction over him is lost. Defendant dismisses his consentto the extension of the probationary terms, asserting that hecould not consent to confer jurisdiction on the court to performan act that the court had no authority to perform.

The State argues that defendant's probationary term wasmodified on October 15, 1998, after a finding of a violation ofprobation. The State next asserts that defendant agreed to asix-month extension of his probationary term in March 2000, andhe therefore has waived any claim of error concerning theextension of the term. Furthermore, because section 5-6-4 of theUnified Code of Corrections (Code) (730 ILCS 5/5-6-4(f) (West2000)) provides that the "conditions of probation *** may bemodified by the court *** on its own motion or at the request ofthe offender after notice and a hearing," the State argues thatthe extension of the probationary period was a propermodification after the requirements of notice and hearing weremet, particularly since defendant had signed a probation contractallowing this procedure.

In reply, defendant maintains that there is no caseauthority which interprets a modification of the conditions ofprobation to include an extension of the probationary termwithout the filing of a petition alleging a violation which wasthen sustained. Defendant does, however, concede that if theterm "condition" under section 5-6-4(f) of the Code isinterpreted as the State argues, then the State must prevail.

To show that defendant's position is correct, he cites In reSneed, 72 Ill. 2d 326, 333-34 (1978), which involved applicationof the juvenile probation statute. There, the supreme courtconcluded that, under the statute in question, the length of theprobationary term was not a condition of the probation and itcould not be properly extended without a hearing resulting in aviolation finding.

In the present case, the relevant statutory provisionsdesignate a specific maximum term of probation for an offense andallow for an extension of that term upon a finding of a violationof a condition of probation. 730 ILCS 5/5-6-2(b),(e) (West1998). The length of a probation term is not designated as acondition of probation. 730 ILCS 5/5-6-3 (West 1998).Consequently, as in Sneed, the trial court could not alter thelength of defendant's probationary term without notice andhearing and a finding that defendant had violated his probation.

This conclusion, however, is not necessarily determinativeof this case. There still remains the impact, if any, of the"contract" defendant signed which provided that any report ofdefendant's noncompliance would permit the trial court to "modify*** [the] sentence of probation."

In People v. Eiland, 217 Ill. App. 3d 250, 258 (1991), theappellate court concluded that defendant, as part of hisprobationary disposition, could waive his fourth amendment rightagainst an improper search by police. In People v. Hall, 198Ill. 2d 173, 181 (2001), the supreme court held that to comportwith due process a defendant at a probation revocation hearingmust be advised of various rights he is giving up if he enters anadmission to the allegations of the petition as well as a factualbasis for the violation. The present case basically presents asituation where defendant is, in effect, entering an admission toa probation violation and having his probation extended withoutthe admonishments required in Hall. While a defendant might beconstitutionally capable of doing so, as suggested in Eiland, hemust be properly advised as such under Hall at the time he entersthe contract. This advisement did not occur in the present case.Therefore, the extension of his probation beyond the expirationof his 18-month RAP term was not proper and the probationrevocation proceedings commencing during that extended periodwere invalid.

Accordingly, we reverse the judgment of the circuit court.

Reversed.

CAMPBELL, P.J. and GREIMAN, J., concur.

1. At later proceedings, the trial court stated that RAP wasa "special drug treatment program, probation program that we runin this courtroom for probation violators."

2. The report of proceedings on September 28, 2000, indicatesthat two probation violation petitions had been filed againstdefendant regarding his illicit drug usage and failure to report.