¶1specially concurring:
¶2I join in the result reached by the plurality because the State did not charge defendant with indirect criminal contempt and the circuit court did not impose any punishment for contempt upon defendant. I do so with the understanding that where the State calls a defendant as an adverse witness at a probation revocation hearing, the defendant’s answers may not be used to support a finding of criminal contempt.
¶3At least two Illinois courts have held that sentencing for contempt of court is a proper sanction for a violation of probation. See People v. Gallinger, 191 Ill. App. 3d 488, 490 (1989) (“The contempt power of the circuit court is a proper sanction for a violation of probation”); People v. Patrick, 83 Ill. App. 3d 951, 954 (1980) (“Because of the court’s inherent contempt power and because the comments of the group drafting the Unified Code of Corrections indicate that the format of the Code was adopted with a recognition of the existence of that inherent power as one added sanction, we deem the court to have possessed power to punish for contempt in this case”); see also People v. Colclasure, 48 Ill. App. 3d 988, 991 (1977) (“Because of the statutory history of use of the contempt sanction for probation violations, the similarity between sentences of probation and periodic imprisonment and analogy to the common law treatment of sanctioning willful violations of other court orders by contempt, we conclude that a trial court is empowered to punish a willful violation of a condition of periodic imprisonment by holding the violator in indirect criminal contempt”). Further, as noted in the council commentary to the probation revocation statute (730 ILCS Ann. 5/5 — 6—4, Council Commentary, at 95 (Smith-Hurd 1997)), “the court retains the sanctions of criminal contempt and fining the offender for violating the conditions of probation.” Because a defendant may be sanctioned for criminal contempt for a violation of the conditions of probation, it is imperative that the defendant’s answers at the probation revocation hearing not be used to support a finding of contempt. Neither may the State use the fruits of the defendant’s testimony against him in a proceeding for contempt. See McCracken v. Corey, 612 P.2d 990 (Alaska 1980) (where the court used its inherent supervisory powers to exclude the parolee’s testimony as well as the fruits of the parolee’s revocation hearing for purposes of the parolee’s subsequent criminal trial). A defendant may not be required to choose between answering the State’s questions, thus supplying the foundation for a finding of contempt, and jeopardizing his conditional liberty by remaining silent. See Minnesota v. Murphy, 465 U.S. 420, 79 L. Ed. 2d 409, 104 S. Ct. 1136 (1984). However, “a State may validly insist on answers to even incriminating questions and hence sensibly administer its probation system, as long as it recognizes that the required answers may not be used in a criminal proceeding and thus eliminates the threat of incrimination.” Murphy, 465 U.S. at 435 n.7, 79 L. Ed. 2d at 425 n.7, 104 S. Ct. at 1146 n.7.
¶4dissenting:
¶5I 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.
¶6Probation 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).
¶7Compliance 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.
¶8Because 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).
¶9Under 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.
¶10Because 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]”).
¶11For the foregoing reasons, I dissent.
¶12JUSTICE KILBRIDE joins in this dissent.