specially concurring:
Section 5 — 6—4 of the Unified Code of Corrections (111. Rev. Stat., 1978 Supp., ch. 38, par. 1005 — 6—4) is a comprehensive scheme for the disposition of alleged violations of probation and one can find no persuasive reason for the invocation of the inherent power of the court in contempt to dispose of such matters.
The use of contempt power in the matter of violation of certain discretionary conditions of probation originated in the legislature in 1939. Section 4 of “An Act providing for a system of probation e c ®,” as amended by an act approved July 13, 1939 (Ill. Rev. Stat. 1939, ch. 38, par. 787(4)) provides in part:
“(4) That the defendant shall do or refrain from doing such further acts touching upon his personal habits and conduct, including the use of intoxicating liquors, the operation of motor vehicles, visiting houses of ill fame, associating with prostitutes or criminals, as the Court may deem necessary for the proper conduct and reform of such defendant, provided, however, the violation by the defendant of that part of the order based on this paragraph, shall not be ground for revoking the order admitting the defendant, but shall be deemed in contempt of the Court and defendant may be proceeded against as in other cases of contempt.” (Emphasis added.)
This legislative authority was repealed effective January 1, 1964. People v. Franciere (1964), 47 Ill. App. 2d 436, 198 N.E.2d 170.
The provision appears to have been a legislative step to limit or restrain the court’s authority to revoke probation and impose a penitentiary sentence for a violation of those particular types of condition of probation.
Neither sections 117 — 1 and 117 — 3 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1971, ch. 38, pars. 117 — 1,117—3), nor its predecessors, authorized a term of imprisonment as a condition of probation. Essentially, the court could only continue probation or impose sentence for the underlying offense.
Section 5 — 6—4(e) of the Unified Code of Corrections (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005 — 6—4(e)) provides:
“If the court finds that the offender has violated a condition at any time prior to the expiration or termination of the period, it may continue him on the existing sentence, with or without modifying or enlarging the conditions, or may impose any other sentence that was available under Section 5 — 5—3 at the time of the initial sentencing.”
Section 5 — 6—3(d) of the Unified Code of Corrections (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005 — 6—3(d)) now permits imprisonment not to exceed three months as a condition of probation.
The last cited sections disclose a procedural scheme whereby upon a finding of violation the court may revoke the existing probation and in the exercise of discretion enlarge or impose new conditions of probation, including imprisonment. The limits of imprisonment are provided by the statute rather than by the choice of the judge.
The authorities cited in support of the use of the inherent power of contempt are not persuasive. In Green v. United States (1958), 356 U.S. 165, 2 L. Ed. 2d 672, 78 S. Ct. 632, there was then no statutory offense for bail jumping, so that the court had no alternative but the use of contempt. In People v. Javaras (1972), 51 Ill. 2d 296, 281 N.E.2d 670, the court reversed a conviction for direct criminal contempt but refrained from determining whether the act alleged was contemptuous or should be prosecuted criminally. In People ex rel. Busch v. White (1929), 334 Ill. 465, 166 N.E. 100, a statute provided that the county court should supervise election judges and clerks and expressly made the appointees subject to contempt of court for official misconduct.
The legislature has used the concept of contempt wittingly and discriminatingly in the development of the several criminal codes. In section 5 — 9—3(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 9—3(b)), it is provided that a wilful failure to pay a fine shall be treated as contempt with a right to release upon payment— in effect a civil contempt.
Sections 112 — 6 and 106 — 3 of the Code of Criminal Procedure of 1963, respectively, provide punishment as in contempt for persons who violate the secrecy of grand jury proceedings and who having been granted immunity refuse to testify. Section 7 of division XIII of the Criminal Code of 1874 provides that persons who have been duly subpoenaed but shall neglect or refuse to attend upon the court shall be proceeded against and punished for contempt of the court. Ill. Rev. Stat. 1977, ch. 38, pars. 112 — 6, 106 — 3 and 155 — 2.
The authority for concluding that the legislature drafted the Unified Code of Corrections in reliance upon sanctions arising under the inherent powers of the court to employ contempt is scant and unpersuasive. Since there may have been some misapprehension arising in the transition from the prior law to the present Codes, I would hold that subsequent to the date of this opinion an alleged violation of a condition of probation must be prosecuted as provided by the Unified Code of Corrections and not by means of contempt of court.