NO. 4-01-0740

	IN THE APPELLATE COURT

	OF ILLINOIS

	FOURTH JUDICIAL DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,	)	Appeal from

		Plaintiff-Appellee,			)	Circuit Court of

          v.						)	Menard County

HENRY R. BUDZYNSKI,					)	No. 95CM100

		Defendant-Appellant.		)		

     							)	Honorable

								)	M. Carol Pope,

								)	Judge Presiding.

		JUSTICE APPLETON delivered the opinion of the court:

		Defendant, Henry R. Budzynski, pleaded guilty to

domestic battery and was sentenced to probation for one year. 

Defendant failed to comply with the conditions of the probation

order.  After the term of probation had expired, the State filed

a petition to hold defendant in contempt for noncompliance.  On

June 18, 2001, the trial court held defendant in indirect crimi

nal contempt for failing to complete the conditions and sentenced

him to 90 days in jail.  The court further ordered defendant to

reimburse the public defender for services rendered.  We vacate

the judgment of the trial court.

I. BACKGROUND

		On April 8, 1996, defendant pleaded guilty to domestic

battery and was sentenced to probation for one year.  The proba

tion order required defendant to report to the probation office

as directed by the probation officer and successfully complete a

domestic violence counseling program.  The probation officer

directed defendant to report in person once per month.

		Defendant reported as required until April 1997.  At that time, defendant informally agreed to an extension of his

probation until August 30, 1997, to allow him time to complete

the domestic violence program.  On June 23, 1997, two months

after the expiration of defendant's term of probation,

defendant's probation officer, Virginia Reiser, filed a report

with the trial court, which stated that defendant had agreed to

sign a petition to modify requesting an extension of his proba

tion until August 30, 1997, in order to complete the counseling,

but that defendant had then failed to sign and return the peti

tion.  The report stated that, as of June 3, 1997, defendant had

attended only seven7 sessions of the 26-week domestic violence pro

gram.  The report further stated that defendant failed to report

to the probation officer in May and June 1997.  The report

requested that the State consider filing a rule to show cause as

to why defendant should not be held in contempt of court.

		On August 15, 1997, the State filed a petition for rule

to show cause alleging that defendant willfully failed to com

plete the conditions of his probation and requested that defen

dant be held in contempt therefor.  The petition was set for

hearing on August 25, 1997.  Defendant failed to appear and a

warrant was issued for his arrest.  After failing to appear at

two subsequently scheduled hearings, defendant was arrested on

March 14, 2001.  The State's petition was again set for May 21,

2001.  On May 21, 2001, the State filed a petition for adjudica

tion of indirect criminal contempt replacing, but containing the same allegations as, its August 15, 1997, petition for rule to

show cause.  The trial court advised defendant of his rights in

regard to the pending petition.  At the time, defendant was

unemployed so counsel was appointed to represent him.  The

State's petition for indirect criminal contempt was set for

hearing on June 18, 2001.

		At the hearing, Reiser testified that she supervised

defendant's probation and defendant reported as required until

April 1997 when his probation expired.  She and defendant agreed

to extend the term of probation so defendant could complete the

domestic violence program since he had attended only seven7 of the 26

required sessions.  Defendant failed to report from May through

August 1997 and failed to return the petition to modify extending

the probationary term prior to the original termination date of

April 8, 1997.  Defendant eventually signed the form; however,

Reiser did not file the petition with the court since the origi

nal term had expired.  Reiser did not consider defendant to have

successfully completed the conditions of his probation.

		Defendant acknowledged that he agreed to extend the

term of his probation through August 30, 1997.  He stated that he

stopped reporting in April 1997 because his original probationary

period was over and the company that he worked for at the time

had sent him on long-term, out-of-state assignments.  He intended

to report in July 1997, but his elderly parents became ill and he

needed to work to support them.  He stated that he turned himself

in on two occasions but was called to work before he was able to follow through.  After suffering a work-related injury, defendant

turned himself in for a final time.

		After hearing the evidence, the trial court held that

the agreement to extend the term of probation had no legal effect

because it was executed after the original term had expired.  The

trial court did not find defendant in contempt for failing to

report after April 1997.  However, the trial court found that

defendant willfully failed to complete the domestic violence

program, and he willfully left the state--failing to appear on

several occasions to answer the charge.  The court found defen

dant guilty beyond a reasonable doubt of indirect criminal

contempt for failing to complete the domestic violence program as

ordered.  Defendant was sentenced to 90 days in jail and ordered

to reimburse the public defender $175.  This appeal followed.     

II. ANALYSIS 

		Defendant appeals, arguing that (1) the trial court

lacked subject-matter jurisdiction to find him in contempt

because his probation period had expired, and (2) it was error

for the trial court to order reimbursement of the public de

fender's fee without conducting a hearing on defendant's ability

to pay.

		A court's jurisdiction generally ends with the expira

tion of probation.  People v. Wilson, 293 Ill. App. 3d 339, 341, 687 N.E.2d 1182, 1184 (1997).  Once the probation period ends,

the defendant may stop looking over his shoulder and is assured

that the State will not seek any more onerous sentence, which the court originally could have imposed.  At that point, probation is

terminated and there is nothing left to revoke or modify. 

Wilson, 293 Ill. App. 3d at 341, 687 N.E.2d at 1184.

		However, this general rule only applies to revocation

or modification of probation.  In some instances, a court may

retain subject-matter jurisdiction to enforce unfulfilled condi

tions of probation after the probation period has expired. 

Wilson, 293 Ill. App. 3d at 341-42, 687 N.E.2d at 1184.  Trial courts may use their contempt power after the probation period to

enforce conditions of probation that can survive independently of

the probation order.  Wilson, 293 Ill. App. 3d at 342, 687 N.E.2d at 1184.

		In Wilson, the State filed a petition for rule to show cause 45 days after the defendant's probation expired.  The State

requested the defendant be held in contempt for willfully failing

to attend Alcoholics Anonymous (AA) meetings, a condition of the

defendant's probation order.  This court, following the decision

in People v. Bertalot, 164 Ill. App. 3d 89, 518 N.E.2d 467 (1987) (use of civil or criminal contempt proceedings not available

after expiration of term of probation), held that, to survive the

period of probation as an independent disposition, the punishment

must exist as a sentencing alternative under section 5-5-3(b) of

the Unified Code of Corrections (Unified Code) (730 ILCS 5/5-5-

3(b) (West 1996)).  Forms of punishment that can only be imposed

in conjunction with probation orders cannot survive once the

probation order has expired.  Wilson, 293 Ill. App. 3d at 343, 687 N.E.2d at 1185.

		Section 5-5-3(b) of the Unified Code lists eight

punishment options that are appropriate dispositions in criminal

cases.  730 ILCS 5/5-5-3(b) (West 1996).  Defendant's domestic

violence counseling condition, like the defendant's AA condition

in Wilson, is not a sentencing alternative under section 5-5- 3(b).  It is only available in conjunction with a probation order

pursuant to section 5-6-3(b).  730 ILCS 5/5-6-3(b) (West 1996). 

Therefore, following our holding in Wilson, when defendant's probation period expired, the trial court lacked subject-matter

jurisdiction to enforce the conditions contained in the probation

order.  See Wilson, 293 Ill. App. 3d at 343, 687 N.E.2d at 1185.

		The State asks us to distinguish our decision in Wilson from the issues presented here.  In Wilson, the State sought to hold the defendant in indirect civil contempt, not indirect

criminal contempt.  The State urges that in Wilson, the holding centers around enforcing conditions (through civil contempt), not

punishing for noncompliance (through criminal contempt).  We

agree with the State that a distinction lies between Wilson and the case sub judice and that distinction focuses on civil versus criminal contempt proceedings.  We take this opportunity to

clarify the issue of contempt as it relates to unperformed

conditions within the term of probation.

		We distinguish Wilson from this case and reject the holding in Bertalot.  In Bertalot, the court specifically held that contempt proceedings, whether civil or criminal, do not survive the probationary term.  Bertalot, 164 Ill. App. 3d at 94, 518 N.E.2d at 471.  We agree that civil contempt, either direct

or indirect, and direct criminal contempt proceedings do not

survive the probationary term.  However, we disagree that indi

rect criminal contempt proceedings do not survive.

		Initially, we note that the trial court was correct in

finding that the petition to modify, which was signed by defen

dant after the original term had expired--agreeing to extend the

term of his probation until August 30, 1997--had no legal effect. 

Without the filing of a petition to revoke or modify prior to

expiration of the original term, defendant's probation ended on

April 8, 1997.  Defendant had no legal obligation to report to

his probation officer or to complete the domestic violence

program after April 8, 1997.  The trial court lost subject-matter

jurisdiction over defendant's case when the term of probation

ended.  Wilson, 293 Ill. App. 3d at 343, 687 N.E.2d at 1185.  However, this does not mean that defendant cannot be punished for

disobeying the court order even after the expiration of the term

of probation.

		Contempt of court has been defined as any act that is

calculated to embarrass, hinder, or obstruct a court in the

administration of justice, or that which is calculated to lessen its

authority or dignity.  People v. Simac, 161 Ill. 2d 297, 305, 641 N.E.2d 416, 420 (1994).  Contempt of court may be classified as

civil or criminal and, further classified as direct or indirect. 

A direct contempt is a contempt committed in the presence of the court while it is in session.  An indirect contempt is a contempt

outside the presence of the court.  People v. Gholson, 412 Ill. 294, 298, 106 N.E.2d 333, 335-36 (1952).

		Criminal contempt is retrospective in nature and

consists of punishing for doing what has been prohibited or not

doing what has been ordered.  In contrast, civil contempt is

prospective in nature and is invoked to coerce what has been

ordered.  In re Marriage of Betts, 200 Ill. App. 3d 26, 46, 558 N.E.2d 404, 417 (1990).  We find that the State correctly desig nated the action here as indirect criminal contempt; however, the

procedure invoked was incorrect.

		Indirect civil contempt is a continuation of the

original cause of action (People v. Marcisz, 32 Ill. App. 3d 467, 470, 334 N.E.2d 737, 739 (1975), rev'd on other grounds, 65 Ill. 2d 206, 357 N.E.2d 477 (1976); cf. People ex rel. Scott v. Silverstein, 87 Ill. 2d 167, 172, 429 N.E.2d 483, 486 (1981) (in context of a pretrial discovery order and imposition of a civil

contempt sanction, contempt "is an original special proceeding,

collateral to and independent of, the case in which the contempt

arises"), whereas, indirect criminal contempt is a separate and

distinct proceeding in and of itself and is not part of the

original case being tried when the contemptuous act occurred. 

Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 396, 110 L. Ed. 2d 359, 375, 110 S. Ct. 2447, 2456 (1990).  Since the offense of

indirect criminal contempt is an original criminal proceeding, a

summons or an arrest warrant should have been served on defendant to obtain jurisdiction. 

		Indirect criminal contempt proceedings must generally

conform to the same constitutionally mandated procedural require

ments as other criminal proceedings.  Betts, 200 Ill. App. 3d at 53, 558 N.E.2d at 425.  The defendant in an indirect criminal

contempt action has a right to be charged by written complaint,

petition, or information; a right to personal service; a right to

file an answer; a right to be heard; a right to present evidence;

a right to cross-examine witnesses; a right to subpoena wit

nesses; a right to a public hearing; a right to the privilege

against self-incrimination; a right to counsel and the appoint

ment of counsel if indigent; and a right to be proved guilty

beyond a reasonable doubt.  Betts, 200 Ill. App. 3d at 53-54, 558 N.E.2d at 425. 

		The contempt proceedings here were fatally flawed

because the State did not file its petition as a new criminal

case and did not personally serve defendant to obtain jurisdic

tion.  Procedures similar to those in other criminal cases should

be followed.  A first appearance should be scheduled wherein the

defendant is advised of the charges filed against him, bond is

set, and counsel appointed, if appropriate.  If the defendant

pleads not guilty to the petition, the matter should then be set

for trial where the burden is on the State to prove the charges

beyond a reasonable doubt.  People ex rel. Chicago Bar Ass'n v. Barasch, 21 Ill. 2d 407, 412, 173 N.E.2d 417, 420 (1961).  To sustain a finding of indirect criminal contempt for a violation of a court order outside the presence of the court, two elements

must be proved:  (1) the existence of a court order, and (2)

willful violation of that order.  People v. Totten, 118 Ill. 2d 124, 138, 514 N.E.2d 959, 965 (1987).

		We find that, in general, a defendant is subject to

indirect criminal contempt proceedings when he or she has not

complied with the conditions of his or her probation.  Those

contempt proceedings may be initiated after the term of probation

has expired as an individual matter and may be prosecuted by the

State's Attorney, counsel for a litigant, or amicus curiae appointed by the court.  Betts, 200 Ill. App. 3d at 59, 558 N.E.2d at 425-26.

		To have found defendant in indirect criminal contempt

of court for failing to complete the domestic violence counseling

as ordered, the State must have initiated a new criminal action

against defendant.  Here, the trial court lost subject-matter

jurisdiction over the defendant when the probationary term

expired.  If jurisdiction is lacking, any judgment of the court

is rendered void.  In re Marriage of Mitchell, 181 Ill. 2d 169, 174, 692 N.E.2d 281, 284 (1998).  Therefore, the trial court's

order of contempt, including the order of reimbursement of public

defender's fees, is void ab initio and must be vacated.

III.  CONCLUSION

		For the reasons stated, we vacate the trial court's

order finding defendant in indirect criminal contempt.

		Vacated.	

		MYERSCOUGH and KNECHT, JJ. concur.