                             NO. 4-06-0824          Filed 6/21/07

                       IN THE APPELLATE COURT

                             OF ILLINOIS

                          FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,   )    Appeal from
          Plaintiff-Appellee,          )    Circuit Court of
          v.                           )    Douglas County
BRETT T. KELLEMS,                      )    No. 03DT69
          Defendant-Appellant.         )
                                       )    Honorable
                                       )    Frank W. Lincoln,
                                       )    Judge Presiding.
_________________________________________________________________

          PRESIDING JUSTICE STEIGMANN delivered the opinion of

the court:

          In January 2004, defendant, Brett T. Kellems, pleaded

guilty to driving under the influence of alcohol (DUI) (625 ILCS

5/11-501 (West 2004)), and the trial court sentenced him to 18

months' court supervision.    In July 2005, a probation officer

filed a petition to revoke defendant's supervision.    In March

2006, defendant filed a motion to dismiss the petition to revoke

his supervision, arguing that because the probation officer did

not have the authority to file the petition, the court did not

have jurisdiction to entertain it.    The court denied defendant's

motion, found that he violated the terms of his supervision, and

entered a judgment of conviction.    The court later imposed a $250

fine upon defendant.

          Defendant appeals, arguing that the trial court erred

by denying his motion to dismiss the petition to revoke his
supervision.   We agree and reverse.



                            I. BACKGROUND

          As previously stated, in January 2004, defendant

pleaded guilty to DUI, and in February 2004, the trial court

sentenced him to 18 months' court supervision.   In July 2005,

Paul Wisovaty, a Douglas County probation officer, filed a

petition to revoke defendant's supervision, alleging that defen-

dant violated two terms of the supervision order.   Specifically,

Wisovaty alleged that defendant violated provisions of the

supervision order that prohibited his (1) violating any criminal

statute and (2) consuming any amount of alcoholic beverage.

          In March 2006, defendant filed a motion to dismiss the

petition to revoke his supervision on the ground that a probation

officer does not have the authority to file such a petition.

Specifically, defendant asserted that (1) only the Douglas County

State's Attorney had authority to file a petition to revoke

supervision, (2) the July 2005 petition to revoke his supervision

filed by Wisovaty was a nullity, and (3) his period of supervi-

sion expired in August 2005, at which time no petition to revoke

had been filed by the State's Attorney.

          In June 2006, the trial court denied defendant's motion

to dismiss.    Later, following a hearing on the petition to revoke

defendant's supervision, the court found that defendant violated


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the conditions of his order of supervision.    The court then

revoked defendant's supervision and entered a judgment of convic-

tion.    Following an August 2006 sentencing hearing, the court

imposed a $250 fine on defendant.

            This appeal followed.

  II. THE TRIAL COURT'S RULING ON DEFENDANT'S MOTION TO DISMISS

            Defendant argues that the trial court erred by denying

his motion to dismiss the petition to revoke his supervision.

Specifically, he contends that a probation officer does not have

the authority to file a petition to revoke supervision.    We

agree.

            Because we are reviewing the trial court's determina-

tion of an issue of law, i.e., whether a probation officer may

file a petition to revoke supervision, our review is de novo.

See People v. Caballes, 221 Ill. 2d 282, 289, 851 N.E.2d 26, 31

(2006) (questions of law are subject to de novo review).

            This court is not aware of any Illinois authority

addressing whether a probation officer may file a petition to

revoke supervision.    Section 12 of the Probation and Probation

Officers Act (730 ILCS 110/12 (West 2004)), which lists the

duties of a probation officer, does not contain a provision

empowering a probation officer to file a petition to revoke

supervision.    In addition, section 5-6-4 of the Unified Code of

Corrections (730 ILCS 5/5-6-4 (West 2004)) is silent as to who


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may file a petition to revoke supervision.   See People v. Dinger,

136 Ill. 2d 248, 255, 554 N.E.2d 1376, 1378 (1990) (where the

supreme court noted that section 5-6-4 of the Unified Code is

silent regarding who may file a petition to revoke probation but

concluded that the defendant in that case had no authority to do

so; otherwise, the defendant could, at her convenience, burden

the State).   Moreover, the State's Attorney's powers and duties

are set forth in section 3-9005 of the Counties Code, which

directs and empowers the State's Attorney to "commence and

prosecute all actions" (55 ILCS 5/3-9005(a)(1) (West 2004)).

          Defendant relies, in part, on this court's decision in

People v. Birt, 274 Ill. App. 3d 805, 655 N.E.2d 321 (1995), to

support his contention that a probation officer does not have the

authority to file a petition to revoke supervision.   In that

case, the State's Attorney filed a motion to modify the condi-

tions of the defendant's probation.    Birt, 274 Ill. App. 3d at

806, 655 N.E.2d at 322.   The defendant argued on appeal that

section 5-6-4(f) of the Unified Code (730 ILCS 5/5-6-4(f) (West

1992)) (which explicitly grants the authority to file a petition

to modify probation to the trial court, a defendant, or a proba-

tion officer) does not give the State's Attorney the authority to

file such a motion.   Birt, 274 Ill. App. 3d at 807, 655 N.E.2d at

323.

          This court rejected the defendant's argument, upon


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concluding that because the State's Attorney's authority to file

motions to modify the conditions of probation was so obvious, the

legislature did not deem it necessary to expressly provide that

State's Attorneys are among those who may file a motion under

section 5-6-4(f) of the Unified Code.     Birt, 274 Ill. App. 3d at

808, 655 N.E.2d at 323.   In so concluding, this court explained

as follows:

          "Instead, the legislature named the entities

          it did--the court, probation officer, or

          defendant--to specify that, in addition to

          the State's Attorney, entities who might

          normally not be thought of as empowered to

          file such a motion may in fact do so."    (Em-

          phasis in original.)     Birt, 274 Ill. App. 3d

          at 808, 655 N.E.2d at 323.

In rejecting the defendant's argument, this court noted that

section 3-9005 of the Counties Code, which, as noted above,

describes the powers and duties of the State's Attorney, provides

that the State's Attorney shall "'commence and prosecute all

actions, suits, indictments[,] and prosecutions, civil and

criminal, in the circuit court for his county, in which the

people of the State or county may be concerned.'"     Birt, 274 Ill.

App. 3d at 808, 655 N.E.2d at 323, quoting 55 ILCS 5/3-9005(a)(1)

(West 1992).   We also noted that "[b]ecause a motion to amend


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probation constitutes a continuation of a criminal case, the

People of the State of Illinois continue to be represented by the

State's Attorney in all proceedings concerning such a motion."

Birt, 274 Ill. App. 3d at 808, 655 N.E.2d at 323.

           The State contends it is not unusual for persons other

than the State's Attorney to initiate legal proceedings, with the

State's Attorney then prosecuting those proceedings.   Examples of

such proceedings include traffic complaints filed by police

officers and criminal complaints filed by private citizens.     See

725 ILCS 5/111-3(b) (West 2004).   However, these examples weaken

the State's argument because in each instance the legislature has

explicitly authorized action that may be taken by persons other

than the State's Attorney.

           Consistent with our reasoning in Birt, we conclude that

if the legislature had intended anyone other than the State's

Attorney (whose authority is necessarily implied) to have author-

ity to file a petition to revoke supervision, it could have said

so.   However, the legislature has not chosen to explicitly

empower probation officers with such authority.   We thus conclude

that Wisovaty lacked authority to file the petition to revoke

defendant's supervision, and the trial court lacked authority to

consider that petition.   Accordingly, we reverse the court's

order revoking defendant's supervision.

                          III. CONCLUSION


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            For the reasons stated, we reverse the trial court's

judgment.

            Reversed.

            MYERSCOUGH and TURNER, JJ., concur.




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