People v. DuMontelle

Mr. PRESIDING JUSTICE ALLOY, dissenting:

While I believe the result reached in the majority opinion is desirable, I do not believe that we are authorized to reach such conclusions in view of the legislative pattern established as to section 10 of the Cannabis Control Act (Ill. Rev. Stat. 1975, ch. 56½, par. 710).

I deem it unnecessary to repeat the factual analysis in the majority opinion, but believe that one of the basic questions to be decided is whether the Unified Code of Corrections applies to circumstances involving section 10 of the Cannabis Control Act. In People v. Glidden (1975), 33 Ill. App. 3d 741 , 338 N.E.2d 205 , we concluded that the provisions of the Unified Code of Corrections dealing with probation revocation did not apply to a section 10 probation. We saw a distinction in the fact that the Code probation, as specified in the legislative enactment, automatically expired at the end of the time period provided for the probation, whereas under the terms of a section 10 probation, the court discharges the defendant at the end of the probation period if it is successfully completed. I am also aware that, in People v. Goetz (1975), 27 Ill. App. 3d 680 , 327 N.E.2d 516 , another district of the appellate court concluded that the provisions of the Unified Code of Corrections do apply to a parallel provision, i.e., section 410 of the Controlled Substances Act (Ill. Rev. Stat. 1975, ch. 56½, par. 1410). I do not believe it is logical to see a basic difference between section 410 of the Controlled Substances Act and section 10 of the Cannabis Control Act, in view of the legislative pattern which was established in those acts.

I see in these legislative enactments a desire on the part of the legislature to create a wholly separate treatment as to defendants who are given probation under those paragraphs. If it intended otherwise, it would have been logical for the legislature to specify that the trial court, in its discretion, following a determination to grant probation, could apply the sections of the Unified Code of Corrections which are applicable (such as section 5 — 6—3(b), which provides for conditions of probation and conditional discharge under the Code). Since the legislature did not do so, I find it difficult to come to the conclusion that the imposition of a fine and of court costs, following a section 10 probation, is consistent with the spirit and intention of the legislative enactment of section 10 of the Cannabis Control Act. I believe, in view of the divergent appellate court opinions referred to in this dissent, that this question can only be resolved by a definitive supreme court opinion, or by a legislative amendment to clarify the role of the judge under a section 10 probation, such as we have in the instant case.

To impose costs or a fine, the trial court would be required to consider the section 10 treatment as a “conviction” in face of the provision of the Act itself which specifies that probation under section 10 is not a conviction for the purpose of disabilities imposed by law.

I conclude, therefore, that the only orderly determination would be that the fine and imposition of court costs were not specifically sanctioned on the record in this case.