People v. Fox
Annotate this Case
SIXTH DIVISION
August 21, 1998
No. 1-97-2665
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County
)
v. )
)
ANDRE FOX, ) Honorable
) Thomas M. Davy,
Defendant-Appellant. ) Judge Presiding.
JUSTICE GREIMAN delivered the opinion of the court:
Following a jury trial, defendant Andre Fox was convicted of
possession of a stolen motor vehicle in violation of section 4-
103 of the Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/4-
103(a)(1) (West 1996)). The trial court then sentenced defendant
to three years' probation, six months in jail satisfied by time
served on electronic monitoring, $900 in probation fees, $235 in
court costs, and $500 in restitution.
As a matter of first impression, the sole issue on appeal is
whether the sentence of restitution, as provided in the Unified
Code of Corrections (730 ILCS 5/5-5-6 (West 1996) (as amended by
Pub. Act 89-689, eff. December 31, 1996)), applies to a
conviction for possession of a stolen motor vehicle, an offense
codified in the Vehicle Code. We find that restitution is not
authorized by statute for such offense and, therefore, vacate the
restitution portion of defendant's sentence.
At trial the State presented evidence that about 9 p.m. on
June 16, 1996, defendant and two other men (Darius Fox,
defendant's son, and Calvin Griffin, a friend of defendant's son)
were arrested while seated in a car that had been reported stolen
on June 12, 1996. The stolen car was a 1989 Buick. At the time
of the arrest, defendant was in the driver's seat and the car was
running. The rear vent window of the car had been broken and the
steering column had been peeled.
Defendant and Darius Fox testified that on the evening of
June 16, 1996, they were in the process of moving to a new
residence with the help of Darius' friend Calvin Griffin.
Defendant owned and was using a 1985 Ford on that evening.
Darius also secured help from a friend named Leroy Arrington to
move boxes, and Arrington arrived in the stolen 1989 Buick.
According to defendant and Darius, when the police arrived at the
scene, the three arrestees (defendant, Darius and Calvin) were
around defendant's Ford, not in the stolen Buick, and Arrington
ran away after exiting the Buick.
The jury convicted defendant of possession of a stolen motor
vehicle. On June 7, 1997, the trial court imposed his sentence,
including $500 in restitution.
On appeal, defendant asserts that the sentence of
restitution for the offense of possession of a stolen motor
vehicle is not authorized by statute and, thus, the trial court
exceeded its authority in imposing such a sentence.
As a threshold matter, we reject the State's argument that
defendant waived this issue for failure to object to the
restitution award and failure to challenge the correctness of the
sentence within 30 days. "A trial court's improper restitution
order is void and may be attacked at any time." People v.
Chaney, 188 Ill. App. 3d 334, 335 (1989) (the restitution award
was vacated as improper because an investigatory agency is not a
"victim" for purposes of restitution). In the present appeal,
defendant directly contests the authority of the trial court to
order restitution and, thus, the issue is not waived. People v.
Thornton, 286 Ill. App. 3d 624, 632 (1997) (the restitution award
was vacated); see also People v. Rayburn, 258 Ill. App. 3d 331,
335 (1994) ("[r]eviewing courts have considered questions
regarding restitution orders as a matter of plain error").
The Vehicle Code sets forth the offense of possession of a
stolen motor vehicle (625 ILCS 5/4-103(a)(1) (West 1996)) and
classifies the conviction of such offense to be a Class 2 felony
for purposes of sentencing (625 ILCS 5/4-103(b) (West 1996)).
The Unified Code of Corrections defines "offense" as
"conduct for which a sentence to a term of imprisonment or to a
fine is provided by any law of this State or by any law, local
law or ordinance of a political subdivision of this State, or by
any order, rule or regulation of any governmental instrumentality
authorized by law to adopt the same." (Emphasis added.) 730
ILCS 5/5-1-15 (West 1996). The Unified Code of Corrections lists
specific options as "appropriate dispositions *** for all
felonies." 730 ILCS 5/5-5-3(b) (West 1996). Among the
appropriate sentencing options is "[a]n order directing the
offender to make restitution to the victim under Section 5-5-6 of
this Code." 730 ILCS 5/5-5-3(b)(7) (West 1996). Section 5-5-6
of the Unified Code of Corrections is entitled "Restitution."
730 ILCS 5/5-5-6 (West 1996) (hereinafter referred to as the
restitution provision).
At the time defendant was sentenced on June 27, 1997, the
restitution provision stated, in relevant part, as follows:
"In all convictions for offenses in violation of
the Criminal Code of 1961 in which the person received
any injury to their person or damage to their real or
personal property as a result of the criminal act of
the defendant, the court shall order restitution as
provided in this Section." 730 ILCS 5/5-5-6 (West
1996) (as amended by Pub. Act 89-689, eff. December 31,
1996).
Where the language in a statute is clear and unambiguous, we
are not at liberty to depart from the plain language and meaning
of the statute by reading into it exceptions, limitations, or
conditions that the legislature did not express. People v.
Woodard, 175 Ill. 2d 435, 443 (1997). In particular, "[c]riminal
or penal statutes are to be strictly construed in favor of an
accused and nothing should be taken by intendment or implication
beyond the obvious or literal meaning of [the] statute."
Woodard, 175 Ill. 2d at 444. Even assuming there is an ambiguity
in a statute pertaining to criminal matters, the ambiguity must
be resolved in favor of the defendant. People v. Daniels, 172 Ill. 2d 154, 163 (1996). A court cannot extend the application
of a criminal or penal statute "to cases which do not, by the
strictest construction, come under their provisions." People v.
Parvin, 125 Ill. 2d 519, 525 (1988).
The plain language of the restitution provision in effect at
the time of defendant's sentencing authorized restitution only
for offenses contained in the Criminal Code of 1961 (720 ILCS
5/1-1 et seq. (West 1996)). The offense of possession of a
stolen motor vehicle is contained in the Vehicle Code, not the
Criminal Code of 1961. Accordingly, the restitution provision,
as codified in the Unified Code of Corrections, did not authorize
the sentence of restitution for the offense of possession of a
stolen motor vehicle.
The State argues that the version of the restitution
provision in effect at the time the instant offense was committed
in June 1996 could be interpreted as allowing the sentence of
restitution for the offense of possession of a stolen motor
vehicle. The State bases its position on the wording that
referred to "all other cases." The June 1996 version of the
restitution provision stated, in relevant part, as follows:
"In all convictions for offenses in violation of
the Criminal Code of 1961 committed against any person
65 years of age or older in which the person received
any injury to their person or damage to their real or
personal property as a result of the criminal act of
the defendant, and in cases where the defendant is
convicted of looting under Section 42-1 of the Criminal
Code of 1961, the court shall order restitution as
provided in this Section. In all other cases, except
cases in which restitution is required under
subdivision (b), the court shall at the sentence
hearing determine whether restitution is an appropriate
sentence to be imposed on each defendant convicted of
an offense. If the court determines that an order
directing the offender to make restitution is
appropriate the offender may be sentenced to make
restitution which shall be determined by the Court as
hereinafter set forth." (Emphasis added.) 730 ILCS
5/5-5-6 (West Supp. 1995).
While we might consider the language "in all other cases" to
include offenses set forth in other laws, such as the Vehicle
Code, the choice is not ours to make. A defendant is entitled to
elect to be sentenced under the law as it existed at the time of
the offense or under the law at the time of sentencing. People
v. Abraham, 257 Ill. App. 3d 587, 597-98 (1993); People v.
Andrews, 95 Ill. App. 3d 595, 600 (1981); People v. Anderson, 93
Ill. App. 3d 646, 655-56 (1981). Accordingly, in the present
case, we confine our decision to the restitution provision in
effect in June 1997, i.e., the time of defendant's sentencing.
At that time the relevant provision did not include the less
restrictive wording of "all other cases" but rather expressly
limited restitution only to "convictions for offenses in
violation of the Criminal Code of 1961."
Primarily, the State urges us to uphold the restitution
order based on the provision in the Vehicle Code that authorizes
the imposition of a compensation award (625 ILCS 5/4-108 (West
1996)). The State argues that the trial court's use of the term
"restitution" instead of "compensation award" is a distinction
without a designation.
The compensation provision in the Vehicle Code provides that
"(b) Any person who is convicted of any offense
under Chapter 4 of this Act, in addition to any other
fines or penalties provided therein, may be required to
compensate the victim, if known, involved in the
related offense, for any loss that the victim sustains
to his person or property.
(c) The amount and method of payment of the
compensation award shall be determined at the time of
the conviction.
(d) For purposes of this Section, 'victim' shall
mean the owner or other legally entitled person." 625
ILCS 5/4-108 (West 1996).
We decline to adopt the semantic reasoning urged upon us by
the State. To be sure, both the compensation provision and the
restitution provision involve comparable penalties (money),
common purposes (to repay a victim for certain damage) and the
use of similar terms (compensation and restitution).
Nevertheless, to accept the State's position of a distinction
without a designation for the purpose of upholding a sentence
that is statutorily invalid we would have to interchange two
distinct sets of laws (the Vehicle Code and the Unified Code of
Corrections) and two separate statutory penalty provisions
(restitution and compensation) and, thereby, permit, by judicial
decision, the very acts that the legislature codified separately.
"[I]t is the legislature, and not this court, which defines
sentencing policy. It is this court's responsibility to
interpret and apply statutes in the manner in which they are
written. Indeed, if this court were to ignore the clear
provisions of a statute in favor of what it believed to
constitute proper policy, this court would be improperly engaging
in judicial lawmaking." People v. Robinson, 172 Ill. 2d 452, 462
(1996); see also People v. Tucker, 167 Ill. 2d 431, 437 (1995).
Moreover, the sole authority proffered by the State to
support its position is the well-established legal principle that
a reviewing court "can sustain the decision of a lower court for
any appropriate reason, regardless of whether the lower ***
court's reasoning was correct." People v. Novak, 163 Ill. 2d 93,
101 (1994). This axiom does not aid or support the State's
argument because, as conceded by the State, the record is
completely silent as to the issue of damages. Although the
police testified that the stolen car had a broken rear window and
a peeled steering column, the record is void of any information
as to the $500 figure selected by the trial court. Thus, we
cannot possibly ascertain "any appropriate reason" from the
silent record in the instant case.
In conclusion, we observe that the compensation provision in
the Vehicle Code clearly is available for sentencing purposes on
a conviction for possession of a stolen motor vehicle. However,
the sentence of restitution for the offense of possession of a
stolen motor vehicle is not authorized by either the Vehicle Code
or the Unified Code of Corrections. Therefore, we vacate the
restitution order in the present case.
Vacated.
ZWICK, J. concurs.
QUINN, J., dissents.
JUSTICE QUINN, dissenting:
As the majority concludes, "(T)he compensation provision in
the Vehicle Code clearly is available for sentencing purposes on a
conviction for possession of a stolen motor vehicle." The pre-
printed form probation order at issue reads in pertinent part "Make
Restitution to James Jones in the amount of $500." The majority
vacates this portion of the order because, the word "Restitution"
should have read "Compensation." This is truly a distinction
without a difference.
I also believe that this issue has been waived in the present
case. All of the cases cited by the majority on the issue of
waiver were decided before our Supreme Court's decision in People
v. Reed, 177 Ill. 2d 389 (1997), requiring sentencing issues be
raised in the trial court in order to preserve those issues for
appellate review. As pointed out in Reed, requiring a written
post-sentencing motion allows the trial court the opportunity to
review a defendant's contention of sentencing error and gives the
appellate court the benefit of the trial court's reasoned judgment
in those issues.
Here, the defense raised no objection in the trial court to
the sufficiency of the evidence as to the amount of monetary loss
suffered by the victim, nor did the defense object to being ordered
to pay "restitution" as opposed to "compensation." If the majority
believes that there is insufficient evidence in the record as to
the issue of damages, the proper remedy is to remand the case to
the trial court for a further hearing. People v. Sharp, 185 Ill.
App. 3d 340, 349 (1989).
Of course, such a remandment would not be necessary had the
defense filed the required written post-sentencing motion. Such
motions have been required even when the defendant is challenging
only a fine or restitution. People v. Fontana, 251 Ill. App. 3d
694, 704 (1993), citing People v. Albert, 243 Ill. App. 3d 23
(1993).
Finally, the majority cite People v. Abraham, 257 Ill. App. 3d
587 (1993) for the proposition that a defendant is entitled to
elect to be sentenced under the law as it existed at the time of
the offense or under the law at the time of sentencing. The law in
effect at the time of Abraham's sentencing was significantly more
severe (possible prison sentence of 5 to 30 years) than at the time
she committed the aggravated battery (possible prison sentence of
3 to 7 years). While I do not question that the defendant in the
case sub judice could have elected to be sentenced under the
version of 730 ILCS 5/5-5-6 in effect at the time he was sentenced,
he did not make such an election. The majority made the election
for him more than a year after his sentencing hearing.
Even if the majority were correct in their holding that the
use of the word "restitution" rather than "compensation" is plain
error and therefore defendant's failure to file a written post-
sentencing motion is not a waiver, defendant's failure to object to
the amount of the damages owed or to elect to be sentenced under
the newest version of section 5-5-6 require that this case be
remanded to the trial court on these issues.
In sum, I believe these sentencing issues which were raised
for the first time on appeal have been waived. If they have not
been waived, then the use of the word "restitution" rather than
"compensation" is harmless error if it is error at all. If both of
these positions are rejected, the sentencing issue as to damages to
be paid to the victim should be remanded to the trial court for
determination. Therefore, I dissent.
August 21, 1998
No. 1-97-2665
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County
)
v. )
)
ANDRE FOX, ) Honorable
) Thomas M. Davy,
Defendant-Appellant. ) Judge Presiding.
JUSTICE GREIMAN delivered the opinion of the court:
Following a jury trial, defendant Andre Fox was convicted of
possession of a stolen motor vehicle in violation of section 4-
103 of the Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/4-
103(a)(1) (West 1996)). The trial court then sentenced defendant
to three years' probation, six months in jail satisfied by time
served on electronic monitoring, $900 in probation fees, $235 in
court costs, and $500 in restitution.
As a matter of first impression, the sole issue on appeal is
whether the sentence of restitution, as provided in the Unified
Code of Corrections (730 ILCS 5/5-5-6 (West 1996) (as amended by
Pub. Act 89-689, eff. December 31, 1996)), applies to a
conviction for possession of a stolen motor vehicle, an offense
codified in the Vehicle Code. We find that restitution is not
authorized by statute for such offense and, therefore, vacate the
restitution portion of defendant's sentence.
At trial the State presented evidence that about 9 p.m. on
June 16, 1996, defendant and two other men (Darius Fox,
defendant's son, and Calvin Griffin, a friend of defendant's son)
were arrested while seated in a car that had been reported stolen
on June 12, 1996. The stolen car was a 1989 Buick. At the time
of the arrest, defendant was in the driver's seat and the car was
running. The rear vent window of the car had been broken and the
steering column had been peeled.
Defendant and Darius Fox testified that on the evening of
June 16, 1996, they were in the process of moving to a new
residence with the help of Darius' friend Calvin Griffin.
Defendant owned and was using a 1985 Ford on that evening.
Darius also secured help from a friend named Leroy Arrington to
move boxes, and Arrington arrived in the stolen 1989 Buick.
According to defendant and Darius, when the police arrived at the
scene, the three arrestees (defendant, Darius and Calvin) were
around defendant's Ford, not in the stolen Buick, and Arrington
ran away after exiting the Buick.
The jury convicted defendant of possession of a stolen motor
vehicle. On June 7, 1997, the trial court imposed his sentence,
including $500 in restitution.
On appeal, defendant asserts that the sentence of
restitution for the offense of possession of a stolen motor
vehicle is not authorized by statute and, thus, the trial court
exceeded its authority in imposing such a sentence.
As a threshold matter, we reject the State's argument that
defendant waived this issue for failure to object to the
restitution award and failure to challenge the correctness of the
sentence within 30 days. "A trial court's improper restitution
order is void and may be attacked at any time." People v.
Chaney, 188 Ill. App. 3d 334, 335 (1989) (the restitution award
was vacated as improper because an investigatory agency is not a
"victim" for purposes of restitution). In the present appeal,
defendant directly contests the authority of the trial court to
order restitution and, thus, the issue is not waived. People v.
Thornton, 286 Ill. App. 3d 624, 632 (1997) (the restitution award
was vacated); see also People v. Rayburn, 258 Ill. App. 3d 331,
335 (1994) ("[r]eviewing courts have considered questions
regarding restitution orders as a matter of plain error").
The Vehicle Code sets forth the offense of possession of a
stolen motor vehicle (625 ILCS 5/4-103(a)(1) (West 1996)) and
classifies the conviction of such offense to be a Class 2 felony
for purposes of sentencing (625 ILCS 5/4-103(b) (West 1996)).
The Unified Code of Corrections defines "offense" as
"conduct for which a sentence to a term of imprisonment or to a
fine is provided by any law of this State or by any law, local
law or ordinance of a political subdivision of this State, or by
any order, rule or regulation of any governmental instrumentality
authorized by law to adopt the same." (Emphasis added.) 730
ILCS 5/5-1-15 (West 1996). The Unified Code of Corrections lists
specific options as "appropriate dispositions *** for all
felonies." 730 ILCS 5/5-5-3(b) (West 1996). Among the
appropriate sentencing options is "[a]n order directing the
offender to make restitution to the victim under Section 5-5-6 of
this Code." 730 ILCS 5/5-5-3(b)(7) (West 1996). Section 5-5-6
of the Unified Code of Corrections is entitled "Restitution."
730 ILCS 5/5-5-6 (West 1996) (hereinafter referred to as the
restitution provision).
At the time defendant was sentenced on June 27, 1997, the
restitution provision stated, in relevant part, as follows:
"In all convictions for offenses in violation of
the Criminal Code of 1961 in which the person received
any injury to their person or damage to their real or
personal property as a result of the criminal act of
the defendant, the court shall order restitution as
provided in this Section." 730 ILCS 5/5-5-6 (West
1996) (as amended by Pub. Act 89-689, eff. December 31,
1996).
Where the language in a statute is clear and unambiguous, we
are not at liberty to depart from the plain language and meaning
of the statute by reading into it exceptions, limitations, or
conditions that the legislature did not express. People v.
Woodard, 175 Ill. 2d 435, 443 (1997). In particular, "[c]riminal
or penal statutes are to be strictly construed in favor of an
accused and nothing should be taken by intendment or implication
beyond the obvious or literal meaning of [the] statute."
Woodard, 175 Ill. 2d at 444. Even assuming there is an ambiguity
in a statute pertaining to criminal matters, the ambiguity must
be resolved in favor of the defendant. People v. Daniels, 172 Ill. 2d 154, 163 (1996). A court cannot extend the application
of a criminal or penal statute "to cases which do not, by the
strictest construction, come under their provisions." People v.
Parvin, 125 Ill. 2d 519, 525 (1988).
The plain language of the restitution provision in effect at
the time of defendant's sentencing authorized restitution only
for offenses contained in the Criminal Code of 1961 (720 ILCS
5/1-1 et seq. (West 1996)). The offense of possession of a
stolen motor vehicle is contained in the Vehicle Code, not the
Criminal Code of 1961. Accordingly, the restitution provision,
as codified in the Unified Code of Corrections, did not authorize
the sentence of restitution for the offense of possession of a
stolen motor vehicle.
The State argues that the version of the restitution
provision in effect at the time the instant offense was committed
in June 1996 could be interpreted as allowing the sentence of
restitution for the offense of possession of a stolen motor
vehicle. The State bases its position on the wording that
referred to "all other cases." The June 1996 version of the
restitution provision stated, in relevant part, as follows:
"In all convictions for offenses in violation of
the Criminal Code of 1961 committed against any person
65 years of age or older in which the person received
any injury to their person or damage to their real or
personal property as a result of the criminal act of
the defendant, and in cases where the defendant is
convicted of looting under Section 42-1 of the Criminal
Code of 1961, the court shall order restitution as
provided in this Section. In all other cases, except
cases in which restitution is required under
subdivision (b), the court shall at the sentence
hearing determine whether restitution is an appropriate
sentence to be imposed on each defendant convicted of
an offense. If the court determines that an order
directing the offender to make restitution is
appropriate the offender may be sentenced to make
restitution which shall be determined by the Court as
hereinafter set forth." (Emphasis added.) 730 ILCS
5/5-5-6 (West Supp. 1995).
While we might consider the language "in all other cases" to
include offenses set forth in other laws, such as the Vehicle
Code, the choice is not ours to make. A defendant is entitled to
elect to be sentenced under the law as it existed at the time of
the offense or under the law at the time of sentencing. People
v. Abraham, 257 Ill. App. 3d 587, 597-98 (1993); People v.
Andrews, 95 Ill. App. 3d 595, 600 (1981); People v. Anderson, 93
Ill. App. 3d 646, 655-56 (1981). Accordingly, in the present
case, we confine our decision to the restitution provision in
effect in June 1997, i.e., the time of defendant's sentencing.
At that time the relevant provision did not include the less
restrictive wording of "all other cases" but rather expressly
limited restitution only to "convictions for offenses in
violation of the Criminal Code of 1961."
Primarily, the State urges us to uphold the restitution
order based on the provision in the Vehicle Code that authorizes
the imposition of a compensation award (625 ILCS 5/4-108 (West
1996)). The State argues that the trial court's use of the term
"restitution" instead of "compensation award" is a distinction
without a designation.
The compensation provision in the Vehicle Code provides that
"(b) Any person who is convicted of any offense
under Chapter 4 of this Act, in addition to any other
fines or penalties provided therein, may be required to
compensate the victim, if known, involved in the
related offense, for any loss that the victim sustains
to his person or property.
(c) The amount and method of payment of the
compensation award shall be determined at the time of
the conviction.
(d) For purposes of this Section, 'victim' shall
mean the owner or other legally entitled person." 625
ILCS 5/4-108 (West 1996).
We decline to adopt the semantic reasoning urged upon us by
the State. To be sure, both the compensation provision and the
restitution provision involve comparable penalties (money),
common purposes (to repay a victim for certain damage) and the
use of similar terms (compensation and restitution).
Nevertheless, to accept the State's position of a distinction
without a designation for the purpose of upholding a sentence
that is statutorily invalid we would have to interchange two
distinct sets of laws (the Vehicle Code and the Unified Code of
Corrections) and two separate statutory penalty provisions
(restitution and compensation) and, thereby, permit, by judicial
decision, the very acts that the legislature codified separately.
"[I]t is the legislature, and not this court, which defines
sentencing policy. It is this court's responsibility to
interpret and apply statutes in the manner in which they are
written. Indeed, if this court were to ignore the clear
provisions of a statute in favor of what it believed to
constitute proper policy, this court would be improperly engaging
in judicial lawmaking." People v. Robinson, 172 Ill. 2d 452, 462
(1996); see also People v. Tucker, 167 Ill. 2d 431, 437 (1995).
Moreover, the sole authority proffered by the State to
support its position is the well-established legal principle that
a reviewing court "can sustain the decision of a lower court for
any appropriate reason, regardless of whether the lower ***
court's reasoning was correct." People v. Novak, 163 Ill. 2d 93,
101 (1994). This axiom does not aid or support the State's
argument because, as conceded by the State, the record is
completely silent as to the issue of damages. Although the
police testified that the stolen car had a broken rear window and
a peeled steering column, the record is void of any information
as to the $500 figure selected by the trial court. Thus, we
cannot possibly ascertain "any appropriate reason" from the
silent record in the instant case.
In conclusion, we observe that the compensation provision in
the Vehicle Code clearly is available for sentencing purposes on
a conviction for possession of a stolen motor vehicle. However,
the sentence of restitution for the offense of possession of a
stolen motor vehicle is not authorized by either the Vehicle Code
or the Unified Code of Corrections. Therefore, we vacate the
restitution order in the present case.
Vacated.
ZWICK, J. concurs.
QUINN, J., dissents.
JUSTICE QUINN, dissenting:
As the majority concludes, "(T)he compensation provision in
the Vehicle Code clearly is available for sentencing purposes on a
conviction for possession of a stolen motor vehicle." The pre-
printed form probation order at issue reads in pertinent part "Make
Restitution to James Jones in the amount of $500." The majority
vacates this portion of the order because, the word "Restitution"
should have read "Compensation." This is truly a distinction
without a difference.
I also believe that this issue has been waived in the present
case. All of the cases cited by the majority on the issue of
waiver were decided before our Supreme Court's decision in People
v. Reed, 177 Ill. 2d 389 (1997), requiring sentencing issues be
raised in the trial court in order to preserve those issues for
appellate review. As pointed out in Reed, requiring a written
post-sentencing motion allows the trial court the opportunity to
review a defendant's contention of sentencing error and gives the
appellate court the benefit of the trial court's reasoned judgment
in those issues.
Here, the defense raised no objection in the trial court to
the sufficiency of the evidence as to the amount of monetary loss
suffered by the victim, nor did the defense object to being ordered
to pay "restitution" as opposed to "compensation." If the majority
believes that there is insufficient evidence in the record as to
the issue of damages, the proper remedy is to remand the case to
the trial court for a further hearing. People v. Sharp, 185 Ill.
App. 3d 340, 349 (1989).
Of course, such a remandment would not be necessary had the
defense filed the required written post-sentencing motion. Such
motions have been required even when the defendant is challenging
only a fine or restitution. People v. Fontana, 251 Ill. App. 3d
694, 704 (1993), citing People v. Albert, 243 Ill. App. 3d 23
(1993).
Finally, the majority cite People v. Abraham, 257 Ill. App. 3d
587 (1993) for the proposition that a defendant is entitled to
elect to be sentenced under the law as it existed at the time of
the offense or under the law at the time of sentencing. The law in
effect at the time of Abraham's sentencing was significantly more
severe (possible prison sentence of 5 to 30 years) than at the time
she committed the aggravated battery (possible prison sentence of
3 to 7 years). While I do not question that the defendant in the
case sub judice could have elected to be sentenced under the
version of 730 ILCS 5/5-5-6 in effect at the time he was sentenced,
he did not make such an election. The majority made the election
for him more than a year after his sentencing hearing.
Even if the majority were correct in their holding that the
use of the word "restitution" rather than "compensation" is plain
error and therefore defendant's failure to file a written post-
sentencing motion is not a waiver, defendant's failure to object to
the amount of the damages owed or to elect to be sentenced under
the newest version of section 5-5-6 require that this case be
remanded to the trial court on these issues.
In sum, I believe these sentencing issues which were raised
for the first time on appeal have been waived. If they have not
been waived, then the use of the word "restitution" rather than
"compensation" is harmless error if it is error at all. If both of
these positions are rejected, the sentencing issue as to damages to
be paid to the victim should be remanded to the trial court for
determination. Therefore, I dissent.
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