specially concurring:
I concur with the majority’s opinion that defendant’s probation was improperly terminated. However, I disagree with the majority’s analysis and, therefore, write separately.
Defendant’s initial contention is that the trial court lacked authority to act upon the petition to revoke her probation when it entered its November 20, 2006, order. As this contention raises a question of law, we review it de novo. People v. Caballes, 221 Ill. 2d 282, 289, 851 N.E.2d 26, 31 (2006).
Defendant’s argument is based on the theories and reasoning discussed in People v. Kellems, 373 Ill. App. 3d 1129, 872 N.E.2d 390 (2007). In Kellems, the Fourth District held that a probation officer lacks authority to file a petition to revoke probation and, as such, a trial court is without authority to consider such a petition. Kellems, 373 Ill. App. 3d at 1133. The court based its reasoning on the power given by the legislature to a probation officer and to a State’s Attorney’s office. The court noted that the legislature did not give probation officers the authority to file such a document in the Probation and Probation Officers Act (730 ILCS 110/12 (West 2004)). Kellems, 373 Ill. App. 3d at 1131.
The Kellems court then noted that the legislature gave, in section 3 — 9005 of the Counties Code (55 ILCS 5/3 — 9005(a)(1) (West 1992)), the authority to 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.” See Kellems, 373 Ill. App. 3d at 1132. Given that this power was conferred upon the State’s Attorney, and the fact that such authority had not been granted to probation officers, the Kellems court held that a court lacks “authority to consider” a petition to revoke filed by a probation officer. Kellems, 373 Ill. App. 3d at 1133.
The State acknowledges that if we follow Kellems, the trial court lacked authority to rule on the petition and the order extending defendant’s probation must be dismissed. The State responds, however, by urging us not to follow Kellems and by noting that our supreme court has never specifically addressed this issue. The State notes that in People v. Dinger, 136 Ill. 2d 248, 554 N.E.2d 1376 (1990), the supreme court merely stated that a petition must be filed by a proper party and that a defendant cannot, herself, file a petition to revoke her own probation. Dinger, 136 Ill. 2d at 259. The State notes that the Dinger court did “not reach the State’s contention that an interpretation allowing anyone other than the State’s Attorney to file a petition unconstitutionally intrudes on its exclusive discretion in the management of a criminal prosecution.” Dinger, 136 Ill. 2d at 259. Therefore, the State argues, following Kellems would be unwise and unwarranted expansion of the “Dinger doctrine.”
Before explaining my disagreement with the reasoning of the Kellems court, I must first note that the term “petition to revoke” is somewhat of a misnomer. The Unified Code of Corrections (the Code) does not technically allow anyone to file a petition to revoke. 730 ILCS 5/5 — 6—1 et seq. (West 2006). Section 5 — 6—4 of the Code sets forth the applicable procedures to inform the court of an alleged violation of a condition of probation. 730 ILCS 5/5 — 6—4 (West 2006). Nowhere in this section, however, is a “petition to revoke” mentioned. Technically, a “petition *** charging a violation of a condition” may be filed with the court. 730 ILCS 5/5 — 6—4(a) (West 2006). Once the petition charging a violation of a condition is filed, the court may: (1) order the issuance of a notice to the offender to be present by the county probation department or such other agency designated by the court to handle probation matters; (2) order a summons to the offender to be present for a hearing; or (3) order a warrant for the offender’s arrest if there is a danger the offender will flee or cause serious harm to others. 730 ILCS 5/5 — 6—4(a)(1) through (a)(3) (West 2006). Personal service of either the notice, summons, or warrant tolls the period of probation. 730 ILCS 5/5 — 6—4(a) (West 2006). The Code continues by stating that the court “shall conduct a hearing of the alleged violation.” 730 ILCS 5/5 — 6—4(b) (West 2006). At the hearing, the “State has the burden of going forward with the evidence and proving the violation by the preponderance of the evidence.” 730 ILCS 5/5 — 6—4(c) (West 2006). Following the hearing, if the court finds a condition of probation was violated then it has many options, one of which is to revoke probation altogether and “impose any other sentence that was available under section 5 — 5—3 of [the] Code or section 11 — 501 of the Illinois Vehicle Code at the time of initial sentencing.” 730 ILCS 5/5— 6 — 4(e) (West 2006).
The term of art, “petition to revoke,” is used by many in the criminal justice arena. However, a petition to revoke is actually a petition charging a violation of a condition of probation that simply requests revocation as a consequence of the alleged violation. This distinction is somewhat significant given the Kellems court’s proclamation that a probation officer lacks “authority to file a petition to revoke defendant’s supervision.” Kellems, 373 Ill. App. 3d at 1133. While a probation officer may not have authority to file a “petition to revoke,” he or she most certainly has authorization to file a petition charging a violation of a condition of probation.
Section 5 — 6—4(i) states that “[i]nstead of filing a violation of probation, *** an agent or employee of the supervising agency with the concurrence of his or her supervisor may serve on the defendant a Notice of Intermediate Sanctions.” 730 ILCS 5/5 — 6—4(i) (West 2006). The legislature therefore empowered the probation department to serve defendant a notice of intermediate sanctions “instead of filing a violation of probation.” This language clearly evinces the legislative intent to provide a probation department with the option of filing a petition charging a violation of probation (petition to revoke) with the court or, instead, filing a notice of intermediate sanctions.
Section 5- — 6—4(f) further supports the conclusion that the legislature intended to give the probation department the authorization to file a petition charging a violation of a condition of probation. Paragraph (f) states that the “conditions of probation *** may be modified by the court on motion of the supervising agency *** after notice and a hearing.” 730 ILCS 5/5 — 6—4(f) (West 2006). I can think of no rational reason why the legislature would allow a “supervising agency” to make a motion to modify probationary conditions in one breath, and deny the same agency the ability to file a petition charging a violation of a condition in another.
It is axiomatic to note that our primary goal of statutory interpretation is to ascertain and give effect to the intention of the legislature. People v. Bailey, 375 Ill. App. 3d 1055, 874 N.E.2d 940 (2007). Therefore, I respectfully disagree with the majority’s analysis and would find that probation officer Daymon Aeilts, with the concurrence of his supervisor, was authorized to file the statement charging violation of probation. The State, through the Tazewell County State’s Attorney’s office, then chose to prosecute the matter to conclusion.
I would not address defendant’s contention that the trial court erred when finding she violated a condition of her probation. As this court has previously stated, “We will not disturb a trial court’s finding in a proceeding to revoke probation unless it is against the manifest weight of the evidence.” People v. Clark, 313 Ill. App. 3d 957, 959, 731 N.E.2d 432, 435 (2000). A finding is against the manifest weight of the evidence only when a contrary result is clearly evident. People v. Clark, 313 Ill. App. 3d at 960. I would hold that the trial court’s finding that defendant violated a condition of her probation was against the manifest weight of the evidence and would reverse the trial court’s order of November 20, 2006, on that basis.
Defendant’s certificate of conditions of probation stated she shall undergo drug or alcohol treatment “ONLY IF REQUIRED FOLLOWING EVAL[UATION].” Neither of the evaluation reports “required” her to submit to treatment. Moreover, there is nothing in the record to indicate that the probation department sent her any kind of notice demanding she engage in alcohol treatment. The trial court acknowledged that “both of these evaluations indicate that no recommendation [for treatment] was made.” Nevertheless, the trial court found that she violated a condition of her probation because she was “resistant” to treatment. The opposite conclusion was the only option available to the trial court. Neither evaluator demanded or required treatment. The State never required defendant to undergo treatment. Defendant cannot be revoked for failing to do something she was never required to do. The finding that defendant violated the treatment condition of her probation was against the manifest weight of the evidence. For that reason, I concur in the majority’s judgment.