dissenting:
I agree that the prosecutor who appeared on defendant’s motion for reconsideration of his new sentence labored under a per se conflict of interest. I would further hold, however, that the probation revocation proceedings preceding the resentencing were constitutionally infirm.
Probation is a criminal sentence authorized under the Unified Code of Corrections (see 730 ILCS 5/5 — 6—1 (West 2000)) where a defendant has been adjudicated guilty of committing a criminal offense in violation of the Criminal Code of 1961 (720 ILCS 5/1 — 1 et seq. (West 2000)). It is an appropriate disposition for all felonies and misdemeanors, with certain statutorily defined exceptions. 730 ILCS 5/5 — 5—3 (2000).
Compliance with the terms of probation is supervised by probation officers (730 ILCS 110/12 (West 2000)), who are judicial employees (730 ILCS 110/9b(3) (West 2000)) and are considered peace officers under Illinois law (730 ILCS 110/15(12) (West 2000)). If a defendant violates the terms of his probation, the violation is dealt with in accordance with section 5 — 6—4 of the Unified Code of Corrections (730 ILCS 5/5 — 6—4 (West 2000)). Under that statute, the defendant may be subject to arrest, revocation of probation and resentencing to any other sentence that was available under the Unified Code of Corrections at the time of his original sentencing.
Because probation is a criminal sentence the violation of which may lead to imposition of another criminal sentence following proceedings under the Unified Code of Corrections, I do not share the view adopted in People v. Lindsey, 199 Ill. 2d 460, 467 (2002) that probation revocation proceedings are civil in nature. Rather, I would follow the authority which holds that such proceedings are part of a “criminal case” within the meaning of article I, section 10, of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, § 10). See People v. McNairy, 309 Ill. App. 3d 220, 222-23 (1999).
Under article I, section 10, “[n]o person shall be compelled in a criminal case to give evidence against himself ***.” Ill. Const. 1970, art. I, § 10. The circuit court violated that prohibition here when it required defendant to testify, over the objection of his attorney, at his probation revocation hearing. To the extent that decisions by our appellate court have taken a contrary view, they should be overruled.
Because defendant’s privilege against self-incrimination was violated, we should reverse the order of the circuit court which revoked defendant’s probation and resentenced him and remand for a new probation revocation hearing. We should further hold that the circuit court may not require defendant to take the witness stand at the new hearing and that it is prohibited from making any presumptions based on the absence of testimony by him. See 725 ILCS 5/115 — 16 (West 2000) (in a criminal case or proceeding, a defendant’s “neglect to testify shall not create a presumption against [him]”).
For the foregoing reasons, I dissent.
JUSTICE KILBRIDE joins in this dissent.