Do Probation Officers Have the Authority to File a Petition to Revoke Supervision ?
In People v. Kellems, 373 Ill. App. 3d 1129, 872 N.E.2d 390, 313 Ill. Dec. 407 (2007), a probation officer filed a petition to revoke the defendant's supervision, alleging that the defendant violated two terms of the supervision order.
The defendant filed a motion to dismiss the petition on the ground that a probation officer does not have the authority to file such a petition.
The trial court rejected the defendant's argument, but on appeal, the Fourth District reversed.
Kellems first noted that section 12 of the Act, which includes the list of duties and responsibilities of probation officers, does not contain a provision empowering a probation officer to file a petition to revoke supervision. Kellems, 373 Ill. App. 3d at 1131, citing 730 ILCS 110/12 (West 2004).
It further noted that section 5-6-4 of the Unified Code of Corrections (730 ILCS 5/5-6-4 (West 2004)) does not specify who has the authority to file a petition to revoke supervision. Kellems, 373 Ill. App. 3d at 1131. Finally, section 3-9005 of the Counties Code (55 ILCS 5/3-9005(a)(1) (West 2006)) states that the "duty of each State's Attorney shall be 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 1131.
People v. Herrin, 385 Ill. App. 3d 187, 895 N.E.2d 1075, 324 Ill. Dec. 360 (2008), agreeing with the reasoning of Kellems, concluded that a petition to revoke probation filed by the probation officer was void ab initio because the probation officer lacked the authority to file it. Herrin, 385 Ill. App. 3d at 190.
The Third District relied on section 3-9005 of the Counties Code, which grants State's Attorneys the authority to commence and prosecute all actions, and 5-6-4(a) of the Unified Code of Corrections, which "mentions a petition 'charging a violation of a [probation] condition' without specifically indicating who is authorized to file the pleading." Herrin, 385 Ill. App. 3d at 190-91, quoting 730 ILCS 5/5-6-4(a) (West 2006).