dissenting:
I respectfully dissent from the result reached by my colleagues. I believe the case should be remanded for reconsideration of the sentence because I believe it was improper to consider the defendant’s previous conviction as an aggravating factor in the determination of an appropriate sentence. As pointed out by the majority, People v. Calvert (1981), 100 Ill. App. 3d 510, 426 N.E.2d 1218, and People v. Talach (1983), 114 Ill. App. 3d 813, 448 N.E.2d 638, have adopted irreconcilable positions on the effect to be given a conviction thereafter dismissed upon the successful completion of supervision. Talaeh, the later case, declines to follow Calvert because, according to the statute, the conviction is dismissed and not expunged or expungable upon the successful completion of supervision.
Supervision as a disposition in a misdemeanor case is of recent origin. Because supervision has been added to or grafted upon an existing structure, its characteristics and effects may not fit neatly into the pre-existing scheme. There can be little doubt of the general intent and purpose of the legislation to provide that where supervision is granted and successfully completed, the usual and customary incidents of a conviction are to be eliminated. Notwithstanding the purposes and intent of the statute, the majority holds that all of the consequences of a conviction are not eliminated unless either specified in the statute or unless the proceeding is expunged.
It seems to me the plain language of the statute which requires dismissal of the charges in mandatory language upon successful completion of supervision means what it says. Section 5 — 6—3.1 of the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38, pars. 1005— 6 — 3.1(e), (f)) provides:
“(e) At the conclusion of the period of supervision, if the court determines that the defendant has successfully complied with all of the conditions of supervision, the court shall discharge the defendant and enter a judgment dismissing the charges.
(f) Discharge and dismissal upon a successful conclusion of a disposition of supervision shall be deemed without adjudication of guilt and shall not be termed a conviction for purposes of disqualification or disabilities imposed by law upon conviction of a crime. Two years after the discharge and dismissal under this Section, unless such conviction was for violation of Section 11— 501 of The Illinois Vehicle Code or a similar provision of a local ordinance in which case it shall be 5 years after discharge and dismissal, a person may have his record of arrest expunged as may be provided by law. However, any defendant placed on supervision before January 1, 1980, may move for expungement of his arrest record, as provided by law, at any time after discharge and dismissal under this Section.”
From these quoted sections of the statute the legislature has declared the judge shall “enter a judgment dismissing the charges.” Furthermore, dismissal “shall be deemed without adjudication of guilt ***.” If there is a judgment dismissing the charges and no adjudication of guilt, thereafter I do not see how it can be any more clearly said there is no conviction. Neither the opinion in Talach nor of the majority explains how the statute can be given its plain and ordinary meaning, i.e., no adjudication of guilt and yet permit the conviction to have the same vitality in relation to sentencing as if it were a conviction.
The majority concedes that charges of criminal conduct without conviction are irrelevant in another criminal proceeding (People v. Jones (1976), 36 Ill. App. 3d 491, 344 N.E.2d 40) but suggests the rule is inapplicable here because of a difference in the quality of the proceeding. Again, referring to the applicable statutory provisions, I find nothing in the statute which in any way suggests that the dismissal described in sections (e) and (f) is intended to be any different than any other dismissal.
The legislature can, and I believe has done so, eliminate the consequence of a conviction by its statutory provisions without including a provision for expungement. Even if this were not the case, sections (e) and (f), when considered together, do provide for a plan of ex-pungement, albeit one which does not authorize expungement at the time of dismissal but one which provides for expungement upon the lapse of time and application by defendant. Once the supervision has been successfully completed and the dismissal entered, there are no other conditions precedent set forth in the statute other than the expiration of time and the application' for the expungement. Delaying expungement may prohibit or adversely affect the grant of supervision for a subsequent offense.
If, as the majority holds, a conviction which has been dismissed still has viability until the proceedings are expunged, it seems to me this places the defendant in a needlessly confusing position. If the defendant is asked on an application such as one to take a bar exam or for employment whether he has been convicted of a crime, how is he to answer the question? If a dismissal of charges eliminates an adjudication of guilt as the statute provides, then I think the answer should be no. If the answer is to be “yes” or “maybe,” then I believe the intent of the statute has been defeated.