We first note that reducing a defendant's good-time credit is analogous to revoking parole, because it changes the conditions of a defendant's incarceration. Parole revocation does not violate the double jeopardy clause ( United States v. DiFrancesco, 449 U.S. 117, 137, 66 L.Ed.2d 328, 346, 101 S.Ct. 426, 437 (1980); People v. Vahle, 60 Ill. App.3d 391, 395, 376 N.E.2d 766, 769 (1978)) because parole and probation are part of the original sentence ( Brown, 59 F.3d at 104-05). Their continuance is conditioned on compliance with stated conditions, and if the defendant does not comply with those conditions, parole and probation may be revoked.
The sole issue presented for review by the State is whether it is required to delay probation revocation proceedings until a trial is had on the criminal offense which constituted the violation of probation. Illinois courts have consistently held that the State may seek both a revocation of defendant's probation and a criminal conviction based on the same conduct. ( People v. Smith (1980), 87 Ill. App.3d 526, 409 N.E.2d 157; People v. Vahle (1978), 60 Ill. App.3d 391, 376 N.E.2d 766.) They have also recognized that defendant has no right, nor is the State obliged, to have probation revocation proceedings delayed until a trial is had on the criminal offense which constitutes a violation of probation. ( People v. Huff (1976), 44 Ill. App.3d 273, 357 N.E.2d 1380; People v. Harkness (1975), 34 Ill. App.3d 1, 339 N.E.2d 545.) The supreme court has held, however, that under the principle of collateral estoppel the State is barred from proceeding on a probation revocation where defendant was acquitted of the same charge.
The appellant argues that punishing him for his theft conviction and revoking his probation on the basis of that conviction constitutes double jeopardy. The appellant acknowledges that the settled law in this State is that jeopardy does not attach at a revocation hearing. ( People v. Vahle (1978), 60 Ill. App.3d 391, 376 N.E.2d 766; People v. Howell (1977), 46 Ill. App.3d 300, 360 N.E.2d 1212; People v. Warne (1976), 39 Ill. App.3d 894, 350 N.E.2d 836.) Instead, he argues that the law should be changed.
In his brief defendant states that he does not contest "well established Illinois law which holds double jeopardy does not exist when properly conducted probation revocation hearings are followed by trials on the same subject matter. See People v. Howell, 46 Ill. App.3d 300, 360 N.E.2d 1212 (5th Dist. 1977); People v. Vahle, 60 Ill. App.3d 391, 376 N.E.2d 766 (4th Dist. 1978)." He argues that the probation-revocation hearing here "was not conducted in a legitimate manner but rather in a way that offended the principles of fairness and finality that are the embodiment of the double jeopardy clause.
This court held the guilty plea was no bar to revocation of his conditional release based on the same act. We compared this situation to a probation revocation wherein a person may be criminally prosecuted for an offense and have his probation revoked premised on the same offense. (See People v. Vahle (1978), 60 Ill. App.3d 391, 376 N.E.2d 766.) We noted the issue was whether the respondent violated the conditions of his release.
First, it has been held that double jeopardy does not apply to proceedings under the Act because those proceedings are civil rather than criminal. ( People v. McDonald (1989), 186 Ill. App.3d 1096, 542 N.E.2d 1266.) Second, in the context of probation revocation proceedings, it has been held that a defendant can be criminally prosecuted for an offense and have his probation revoked in another case for the same offense. ( People v. Vahle (1978), 60 Ill. App.3d 391, 376 N.E.2d 766; People v. Ward (1980), 80 Ill. App.3d 253, 399 N.E.2d 728.) In Vahle, this court explained that at the revocation proceeding the defendant was being tried for violating the terms of his probation, not for the substantive offense.
A defendant may have his probation revoked and subsequently be convicted for the substantive offense without double jeopardy being involved. ( People v. Smith (1980), 87 Ill. App.3d 526, 409 N.E.2d 157; People v. Vahle (1978), 60 Ill. App.3d 391, 376 N.E.2d 766.) A defendant need not be indicted, prosecuted, or convicted of the offense forming the basis of the revocation proceeding.
The State maintains that the credit should only be that time from defendant's arrest until a hold order was issued by the Department of Corrections pursuant to proceedings to revoke defendant's parole. The State relies upon People v. Vahle (1978), 60 Ill. App.3d 391, 376 N.E.2d 766. There, unlike here, the defendant had been released on bail prior to being taken into custody for an alleged probation violation. Here, defendant was in custody when the order was issued.
First, the rule is correct in its assumption that if the defendant's probation is revoked based upon the commission of a subsequent criminal act, such a revocation does not bar a criminal trial based upon that same criminal action. People v. Vahle, 60 Ill. App.3d 391, 17 Ill.Dec. 620, 376 N.E.2d 766 (1978). This principle is conceded in our original opinion.
Following a hearing on January 23, 1980, the defendant's probation was revoked. • 1 The defendant admits the courts of this State have consistently held that the State may seek both a revocation of a defendant's probation and a criminal conviction based on the same conduct. ( People v. Ward (1980), 80 Ill. App.3d 253, 399 N.E.2d 728, appeal denied (1980), 81 Ill.2d 598; People v. Vahle (1978), 60 Ill. App.3d 391, 376 N.E.2d 766; People v. Howell (1977), 46 Ill. App.3d 300, 360 N.E.2d 1212; People v. Warne (1976), 39 Ill. App.3d 894, 350 N.E.2d 836, cert. denied (1977), 429 U.S. 1107, 51 L.Ed.2d 559, 97 S.Ct. 1139.) However, the defendant asks that we follow the reasoning of the dissents in Vahle and Ward and the special concurring opinion in People v. Bone (1979), 70 Ill. App.3d 972, 389 N.E.2d 575, without providing any basis for this change of position except to say that the majority opinion of this court in Ward was incorrect.