dissenting:
I respectfully dissent. The circuit court dismissed the State’s petition to revoke probation on due process grounds because six years had elapsed between the time the petition to revoke probation was filed and the time the defendant returned to Illinois to face the allegation that he had violated his probation, and it is upon those same due process grounds that the majority affirms that dismissal. I do not agree with the majority that under the circumstances of this case the defendant’s due process rights have been violated. The United States Supreme Court does not attach to revocation proceedings the full range of procedural safeguards associated with a criminal trial, because the probationer already stands convicted of a crime. See United States v. Sanchez, 225 F.3d 172, 175 (2d Cir. 2000). A delay between a defendant’s violation of probation and the execution of the violation warrant does not, in and of itself, violate a defendant’s due process rights. See Sanchez, 225 F.3d at 175. Furthermore, the delay in this case does not impair the defendant’s ability to contest the revocation petition; either he was convicted of attempted burglary in Indiana or he was not so convicted.
The defendant claims prejudice, however, because he does not have the chance to have his sentences served concurrently. I do not believe that the lost opportunity to ask permission to serve sentences concurrently amounts to the deprivation of a due process right. The statute allowing for concurrent sentencing under the circumstances of this case states, “A defendant who has a previous and unexpired sentence of imprisonment imposed by another state *** and who, after sentence for a crime in Illinois, must return to serve the unexpired prior sentence may have his sentence by the Illinois court ordered to be concurrent with the prior sentence in the other state.” 730 ILCS 5/5 — 8—1(e) (West 2000). The operative word in the statute is “may.” The defendant did not have a right to concurrent sentences, nor did he have a right to credit against the time he served in Indiana. The defendant has been convicted of felonies in Illinois, Kentucky, and Indiana. The conviction on which he was granted probation in this cause was the defendant’s fifth felony conviction. The fact that the circuit court attempted probation on the underlying conviction in the first place must not be allowed to denigrate the gravity of that offense. Rather, it merely indicates that the court was willing to give the defendant a chance. People v. Reznick, 141 Ill. App. 3d 593, 598, 491 N.E.2d 444, 447 (1986). Accordingly, I believe that the circuit court should be afforded the discretion to punish the defendant for his violation of probation.
In support of its proposition that a due process violation has occurred, the majority states that “section 5 of the Uniform Criminal Extradition Act (725 ILCS 225/5 (West 2002)) would have allowed the State to procure the defendant’s presence for a hearing while he was still incarcerated in Indiana.” 346 Ill. App. 3d at 562.1 take issue with that statement on two counts. First, section 5 is couched in permissive, rather than mandatory, language as well, and there is no duty on the part of the requestee state to return the defendant to the requesting state. 725 ILCS 225/5 (West 2002). The defendant has presented no credible evidence that Indiana would have agreed to return him to Illinois for a probation revocation hearing during the defendant’s Indiana prison term. Second, although the defendant would presumably be restrained while in transit, the transportation of the defendant to Illinois from Indiana while the defendant was still incarcerated in Indiana nevertheless would expose the citizens of both Indiana and Illinois to unnecessary risk and would divert law enforcement and corrections officers in both states from more pressing duties.