dissenting:
I note that while it is well established that only “minimum requirements” of due process be applied at a probation revocation hearing, due process mandates that a probationer have notice of the alleged violations. (See Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 6—4(f).) A condition precedent to the revocation of a defendant’s probation is that there must first be on file a petition to revoke probation. (People v. Strickland (1991), 211 Ill. App. 3d 183, 190, 569 N.E.2d 1202.) The state of the instant record reveals that no petition was filed and defendant did not receive notice of the charges. Hence, no revocation hearing should have occurred.
The majority infers an awful lot from the insubstantial record in this case. It also suggests that the instant case, unlike People v. Strickland (211 Ill. App. 3d 183, 569 N.E.2d 1202), is devoid of confusion between the parties as to the nature of the proceedings. This appears to be based on the characterization in Strickland of the proceedings as a status hearing, whereas in the case at bar, the proceedings were designated as a revocation hearing. I find this distinction to be inconsequential. The fact of the matter is there was no petition or any other document alleging the act(s) of violation to which defendant was responding.
My colleagues refer to half sheet entries which reflect continued dates and characterizations of events described, i.e., status and VOP hearing. They also allude to a statement by counsel at the conclusion of the hearing that “Count I of the indictment” charged defendant with theft. They then conclude that the aforementioned constitute a clear indication that defendant was afforded sufficient notice of the charges against him. I vehemently disagree.
One of the cardinal precepts that courts of review are bound to acknowledge is that our review of cases on appeal is subject to limitations, i.e.-, rules governing review and the trial court record. (See 134 Ill. 2d R. 301 et seq.) With respect to the trial court record in the case at bar, it is barren as it pertains to notice of an alleged charge or charges. The common law record reveals no petition or any other written charge of a probation violation. Nor does the half sheet, referred to by the majority, reflect any entries evidencing the filing of such a petition. Additionally, the half sheet entries only reflect that defendant was in custody and the case was continued from time to time. There is no transcript of what occurred at each court appearance, with the exception of the hearing.
The majority correctly states the law. It cites language from People v. Strickland (211 Ill. App. 3d 183, 569 N.E.2d 1202), which sets forth the general, time-honored principle that a condition precedent to the revocation of a defendant’s probation is that there must first be on file a petition to revoke probation. It then proceeds to conjecture and speculate about what the defendant “must have known” without any support in the record before this court. It is a far cry from knowing that a revocation hearing has been set and knowing why it has been set. In People v. Butler (1985), 137 Ill. App. 3d 704, 711, 484 N.E. 2d 921, this court stated “defendant is entitled to know the nature of the charge in advance of any hearing wherein he is alleged to have breached the order granting him probation and must be given an opportunity to answer any charge that has been preferred against him.”
Even as to probation revocation, defendant is entitled to “the minimum protections of due process” (emphasis added) (Gagnon v. Scarpelli (1973), 411 U.S. 778, 781-82, 36 L. Ed. 2d 656, 661-62, 93 S. Ct. 1756, 1759-60, which includes notice of the charge. It is far from clear what counsel was referring to when she made reference to an indictment. This is especially so when a probation revocation is not usually initiated by indictment and when there is no such document contained in the record. The entire record contains four indictments. They are as follows: (1) residential burglary and possession of burglary tools occurring on October 19, 1976, wherein the complainant is one William Moran; (2) two counts of theft occurring on August 8, 1989, wherein one Linda Camras is the complainant; (3) attempted residential burglary occurring on September 3, 1989, wherein the complainant is Joanne Barrett, and (4) attempted residential burglary and possession of burglary tools occurring on October 5, 1989, wherein Sally Gonzalez is the complainant. This recitation becomes meaningful after reviewing the transcript of the revocation hearing where it is revealed that the property which is allegedly the subject matter of this violation belonged to a couple named Messit and no specific date of offense is alleged although the property was recovered from the defendant’s presence in August of 1991. Hence, after meticulously and painstakingly examining this record, no complaint, indictment, information, petition or charge in any form could be found which alleges an occurrence of August 1991 and a complainant named Messit (Edward and Lorraine). The record in this case is abysmal, and this court should not countenance such shoddiness by affirming the trial court in light of the state of this record. The United States Supreme Court held in Thompson v. City of Louisville (1960), 362 U.S. 199, 4 L. Ed. 2d 654, 80 S. Ct. 624, that a conviction based upon a record wholly devoid of any relevant evidence of a crucial element of the offense charged is constitutionally infirm. Thus, I agree wholeheartedly with the “no evidence” doctrine of Thompson, reiterated in Jackson v. Virginia (1979), 443 U.S. 307, 314, 61 L. Ed. 2d 560, 570, 99 S. Ct. 2781, 2786, that an accused is accorded “Freedom from a wholly arbitrary deprivation of liberty.”
If in fact defendant has waived this issue, I would invoke the doctrine of plain error pursuant to Supreme Court Rule 615 (134 Ill. 2d R. 615). The error in this case affects substantial rights and, in the interest of justice, should be noticed.
Not only would I find a deprivation of due process, but there is also a breach of the statutory provision (see Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 6—4(a)) which requires the State to file a written petition setting forth the allegations which constitute a violation of the terms of defendant’s probation.
Accordingly, I would reverse and remand for further proceedings.