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Defendant, Henry R. Budzynski, pleaded guilty todomestic battery and was sentenced to probation for one year. Defendant failed to comply with the conditions of the probationorder. After the term of probation had expired, the State fileda petition to hold defendant in contempt for noncompliance. OnJune 18, 2001, the trial court held defendant in indirect criminal contempt for failing to complete the conditions and sentencedhim to 90 days in jail. The court further ordered defendant toreimburse the public defender for services rendered. We vacatethe judgment of the trial court.

I. BACKGROUND

On April 8, 1996, defendant pleaded guilty to domesticbattery and was sentenced to probation for one year. The probation order required defendant to report to the probation officeas directed by the probation officer and successfully complete adomestic violence counseling program. The probation officerdirected defendant to report in person once per month.

Defendant reported as required until April 1997. Atthat time, defendant informally agreed to an extension of hisprobation until August 30, 1997, to allow him time to completethe domestic violence program. On June 23, 1997, two monthsafter the expiration of defendant's term of probation,defendant's probation officer, Virginia Reiser, filed a reportwith the trial court, which stated that defendant had agreed tosign a petition to modify requesting an extension of his probation until August 30, 1997, in order to complete the counseling,but that defendant had then failed to sign and return the petition. The report stated that, as of June 3, 1997, defendant hadattended only 7 sessions of the 26-week domestic violence program. The report further stated that defendant failed to reportto the probation officer in May and June 1997. The reportrequested that the State consider filing a rule to show cause asto why defendant should not be held in contempt of court.

On August 15, 1997, the State filed a petition for ruleto show cause alleging that defendant willfully failed to complete the conditions of his probation and requested that defendant be held in contempt therefor. The petition was set forhearing on August 25, 1997. Defendant failed to appear and awarrant was issued for his arrest. After failing to appear attwo subsequently scheduled hearings, defendant was arrested onMarch 14, 2001. The State's petition was again set for May 21,2001. On May 21, 2001, the State filed a petition for adjudication of indirect criminal contempt replacing, but containing thesame allegations as, its August 15, 1997, petition for rule toshow cause. The trial court advised defendant of his rights inregard to the pending petition. At the time, defendant wasunemployed so counsel was appointed to represent him. TheState's petition for indirect criminal contempt was set forhearing on June 18, 2001.

At the hearing, Reiser testified that she superviseddefendant's probation and defendant reported as required untilApril 1997 when his probation expired. She and defendant agreedto extend the term of probation so defendant could complete thedomestic violence program since he had attended only 7 of the 26required sessions. Defendant failed to report from May throughAugust 1997 and failed to return the petition to modify extendingthe probationary term prior to the original termination date ofApril 8, 1997. Defendant eventually signed the form; however,Reiser did not file the petition with the court since the original term had expired. Reiser did not consider defendant to havesuccessfully completed the conditions of his probation.

Defendant acknowledged that he agreed to extend theterm of his probation through August 30, 1997. He stated that hestopped reporting in April 1997 because his original probationaryperiod was over and the company that he worked for at the timehad sent him on long-term, out-of-state assignments. He intendedto report in July 1997, but his elderly parents became ill and heneeded to work to support them. He stated that he turned himselfin on two occasions but was called to work before he was able tofollow through. After suffering a work-related injury, defendantturned himself in for a final time.

After hearing the evidence, the trial court held thatthe agreement to extend the term of probation had no legal effectbecause it was executed after the original term had expired. Thetrial court did not find defendant in contempt for failing toreport after April 1997. However, the trial court found thatdefendant willfully failed to complete the domestic violenceprogram, and he willfully left the state--failing to appear onseveral occasions to answer the charge. The court found defendant guilty beyond a reasonable doubt of indirect criminalcontempt for failing to complete the domestic violence program asordered. Defendant was sentenced to 90 days in jail and orderedto reimburse the public defender $175. This appeal followed.

II. ANALYSIS

Defendant appeals, arguing that (1) the trial courtlacked subject-matter jurisdiction to find him in contemptbecause his probation period had expired, and (2) it was errorfor the trial court to order reimbursement of the public defender's fee without conducting a hearing on defendant's abilityto pay.

A court's jurisdiction generally ends with the expiration of probation. People v. Wilson, 293 Ill. App. 3d 339, 341,687 N.E.2d 1182, 1184 (1997). Once the probation period ends,the defendant may stop looking over his shoulder and is assuredthat the State will not seek any more onerous sentence, which thecourt originally could have imposed. At that point, probation isterminated and there is nothing left to revoke or modify. Wilson, 293 Ill. App. 3d at 341, 687 N.E.2d at 1184.

However, this general rule only applies to revocationor modification of probation. In some instances, a court mayretain subject-matter jurisdiction to enforce unfulfilled conditions of probation after the probation period has expired. Wilson, 293 Ill. App. 3d at 341-42, 687 N.E.2d at 1184. Trialcourts may use their contempt power after the probation period toenforce conditions of probation that can survive independently ofthe probation order. Wilson, 293 Ill. App. 3d at 342, 687 N.E.2dat 1184.

In Wilson, the State filed a petition for rule to showcause 45 days after the defendant's probation expired. The Staterequested the defendant be held in contempt for willfully failingto attend Alcoholics Anonymous (AA) meetings, a condition of thedefendant's probation order. This court, following the decisionin People v. Bertalot, 164 Ill. App. 3d 89, 518 N.E.2d 467 (1987)(use of civil or criminal contempt proceedings not availableafter expiration of term of probation), held that, to survive theperiod of probation as an independent disposition, the punishmentmust exist as a sentencing alternative under section 5-5-3(b) ofthe Unified Code of Corrections (Unified Code) (730 ILCS 5/5-5-3(b) (West 1996)). Forms of punishment that can only be imposedin conjunction with probation orders cannot survive once theprobation order has expired. Wilson, 293 Ill. App. 3d at 343,687 N.E.2d at 1185.

Section 5-5-3(b) of the Unified Code lists eightpunishment options that are appropriate dispositions in criminalcases. 730 ILCS 5/5-5-3(b) (West 1996). Defendant's domesticviolence counseling condition, like the defendant's AA conditionin Wilson, is not a sentencing alternative under section 5-5-3(b). It is only available in conjunction with a probation orderpursuant to section 5-6-3(b). 730 ILCS 5/5-6-3(b) (West 1996). Therefore, following our holding in Wilson, when defendant'sprobation period expired, the trial court lacked subject-matterjurisdiction to enforce the conditions contained in the probationorder. See Wilson, 293 Ill. App. 3d at 343, 687 N.E.2d at 1185.

The State asks us to distinguish our decision in Wilsonfrom the issues presented here. In Wilson, the State sought tohold the defendant in indirect civil contempt, not indirectcriminal contempt. The State urges that in Wilson, the holdingcenters around enforcing conditions (through civil contempt), notpunishing for noncompliance (through criminal contempt). Weagree with the State that a distinction lies between Wilson andthe case sub judice and that distinction focuses on civil versuscriminal contempt proceedings. We take this opportunity toclarify the issue of contempt as it relates to unperformedconditions within the term of probation.

We distinguish Wilson from this case and reject theholding in Bertalot. In Bertalot, the court specifically heldthat contempt proceedings, whether civil or criminal, do notsurvive the probationary term. Bertalot, 164 Ill. App. 3d at 94,518 N.E.2d at 471. We agree that civil contempt, either director indirect, and direct criminal contempt proceedings do notsurvive the probationary term. However, we disagree that indirect criminal contempt proceedings do not survive.

Initially, we note that the trial court was correct infinding that the petition to modify, which was signed by defendant after the original term had expired--agreeing to extend theterm of his probation until August 30, 1997--had no legal effect. Without the filing of a petition to revoke or modify prior toexpiration of the original term, defendant's probation ended onApril 8, 1997. Defendant had no legal obligation to report tohis probation officer or to complete the domestic violenceprogram after April 8, 1997. The trial court lost subject-matterjurisdiction over defendant's case when the term of probationended. Wilson, 293 Ill. App. 3d at 343, 687 N.E.2d at 1185. However, this does not mean that defendant cannot be punished fordisobeying the court order even after the expiration of the termof probation.

Contempt of court has been defined as any act that iscalculated to embarrass, hinder, or obstruct a court in theadministration of justice, or that is calculated to lessen itsauthority or dignity. People v. Simac, 161 Ill. 2d 297, 305, 641N.E.2d 416, 420 (1994). Contempt of court may be classified ascivil or criminal and further classified as direct or indirect. A direct contempt is a contempt committed in the presence of thecourt while it is in session. An indirect contempt is a contemptoutside the presence of the court. People v. Gholson, 412 Ill.294, 298, 106 N.E.2d 333, 335-36 (1952).

Criminal contempt is retrospective in nature andconsists of punishing for doing what has been prohibited or notdoing what has been ordered. In contrast, civil contempt isprospective in nature and is invoked to coerce what has beenordered. In re Marriage of Betts, 200 Ill. App. 3d 26, 46, 558N.E.2d 404, 417 (1990). We find that the State correctly designated the action here as indirect criminal contempt; however, theprocedure invoked was incorrect.

Indirect civil contempt is a continuation of theoriginal cause of action (People v. Marcisz, 32 Ill. App. 3d 467,470, 334 N.E.2d 737, 739 (1975), rev'd on other grounds, 65 Ill.2d 206, 357 N.E.2d 477 (1976); cf. People ex rel. Scott v.Silverstein, 87 Ill. 2d 167, 172, 429 N.E.2d 483, 486 (1981) (incontext of a pretrial discovery order and imposition of a civilcontempt sanction, contempt "is an original special proceeding,collateral to and independent of, the case in which the contemptarises"), whereas indirect criminal contempt is a separate anddistinct proceeding in and of itself and is not part of theoriginal case being tried when the contemptuous act occurred. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 396, 110 L. Ed. 2d359, 375, 110 S. Ct. 2447, 2456 (1990). Since the offense ofindirect criminal contempt is an original criminal proceeding, asummons or an arrest warrant should have been served on defendantto obtain jurisdiction.

Indirect criminal contempt proceedings must generallyconform to the same constitutionally mandated procedural requirements as other criminal proceedings. Betts, 200 Ill. App. 3d at53, 558 N.E.2d at 425. The defendant in an indirect criminalcontempt action has a right to be charged by written complaint,petition, or information; a right to personal service; a right tofile an answer; a right to be heard; a right to present evidence;a right to cross-examine witnesses; a right to subpoena witnesses; a right to a public hearing; a right to the privilegeagainst self-incrimination; a right to counsel and the appointment of counsel if indigent; and a right to be proved guiltybeyond a reasonable doubt. Betts, 200 Ill. App. 3d at 53-54, 558N.E.2d at 425.

The contempt proceedings here were fatally flawedbecause the State did not file its petition as a new criminalcase and did not personally serve defendant to obtain jurisdiction. Procedures similar to those in other criminal cases shouldbe followed. A first appearance should be scheduled wherein thedefendant is advised of the charges filed against him, bond isset, and counsel appointed, if appropriate. If the defendantpleads not guilty to the petition, the matter should then be setfor trial where the burden is on the State to prove the chargesbeyond a reasonable doubt. People ex rel. Chicago Bar Ass'n v.Barasch, 21 Ill. 2d 407, 412, 173 N.E.2d 417, 420 (1961). Tosustain a finding of indirect criminal contempt for a violationof a court order outside the presence of the court, two elementsmust be proved: (1) the existence of a court order, and (2)willful violation of that order. People v. Totten, 118 Ill. 2d124, 138, 514 N.E.2d 959, 965 (1987).

We find that, in general, a defendant is subject toindirect criminal contempt proceedings when he or she has notcomplied with the conditions of his or her probation. Thosecontempt proceedings may be initiated after the term of probationhas expired as an individual matter and may be prosecuted by theState's Attorney, counsel for a litigant, or amicus curiaeappointed by the court. Betts, 200 Ill. App. 3d at 59, 558N.E.2d at 425-26.

To have found defendant in indirect criminal contemptof court for failing to complete the domestic violence counselingas ordered, the State must have initiated a new criminal actionagainst defendant. Here, the trial court lost subject-matterjurisdiction over the defendant when the probationary termexpired. If jurisdiction is lacking, any judgment of the courtis rendered void. In re Marriage of Mitchell, 181 Ill. 2d 169,174, 692 N.E.2d 281, 284 (1998). Therefore, the trial court'sorder of contempt, including the order of reimbursement of publicdefender's fees, is void ab initio and must be vacated.

III. CONCLUSION

For the reasons stated, we vacate the trial court'sorder finding defendant in indirect criminal contempt.

Vacated.

MYERSCOUGH and KNECHT, JJ. concur.