People v. Felton ( 2008 )

Filed 10/22/08 NO. 4-07-1063
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Vermilion County
ANGELA R. FELTON, ) No. 06CF113
Defendant-Appellant. )
) Honorable
) Claudia S. Anderson,
) Judge Presiding.
________________________________________________________________
JUSTICE TURNER delivered the opinion of the court:
In March 2006, the State charged defendant, Angela R.
Felton, by information with four counts of forgery (720 ILCS
5/17-3(a)(2) (West 2006)). Pursuant to a plea agreement, defen-
dant pleaded guilty to two of the four forgery counts. In July
2006, the trial court sentenced defendant to 24 months' probation
and ordered her to pay $2,979.68 in restitution. In September
2006, the State filed a petition to revoke defendant's probation,
and after a hearing, the court found defendant had violated her
probation. In November 2006, the court modified defendant's
probation by adding an additional six months of probation. In
August 2007, the State filed a second petition to revoke defen-
dant's probation, and defendant admitted one of the violations
alleged in the petition. In November 2007, the court revoked
defendant's probation and resentenced her to three years' impris-
onment and ordered her to pay $2,979.68 in restitution. Defen-
dant filed a motion to reconsider her sentence, which the court
denied in December 2007.
Defendant appeals, asserting the trial court erred by
ordering her to pay $2,979.68 in restitution because a portion of
that amount related to one of the forgery charges that was
dismissed. We affirm in part, vacate in part, and remand with
directions.
I. BACKGROUND
The March 2006 charges against defendant were based on
four checks that were payable to defendant, purportedly made by
another, and dated January 27, 2006. The charges alleged defendant
cashed the checks with the intent to defraud. The amounts of the
checks were $994.72, $996.83, $984.72, and $988.13 for counts I
through IV, respectively. The State later filed amended charges that
added more information but did not change the crimes or the amounts
of the checks.
At a May 15, 2006, hearing, defendant pleaded guilty to
forgery counts I and II under a plea agreement. The plea agreement
provided that, if defendant pleaded guilty to counts I and II, counts
III and IV would be dismissed and she would be placed on probation,
of which the terms and conditions would be determined by the trial
court. The court accepted defendant's guilty plea and dismissed
counts III and IV.
In a June 2006 letter, the financial institution where
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defendant cashed three of the four checks requested restitution for
three checks in the amounts of $988.13, $996.83, and $994.72, for a
total of $2,979.68. At a July 2006 sentencing hearing, the trial
court sentenced defendant to 24 months' probation and, inter alia,
ordered defendant to pay $2,979.68 in restitution.
In September 2006, the State filed a petition to revoke
defendant's probation. On September 28, 2006, the trial court held a
hearing on the State's petition and found the State had proved
defendant violated her probation by failing to show up for her home
visit. In November 2006, the court modified defendant's probation
order by adding an additional six months of probation and requiring
her to comply with mental-health treatment.
In August 2007, the State filed a second petition to
revoke defendant's probation, alleging defendant failed to (1) report
to the probation office for six months, (2) pay restitution, and (3)
undergo a mental-health evaluation. At a September 2006 hearing,
defendant admitted she had failed to report to probation, and the
State withdrew the other two alleged violations. The trial court
accepted defendant's admission to the probation violation and re-
served revocation of probation until sentencing. At the November
2007 sentencing hearing, the court resentenced defendant to three
years' imprisonment and ordered her to pay $2,979.68 in restitution.
Defendant filed a motion to reconsider, arguing her sentence was
excessive. After a December 18, 2007, hearing, the court denied
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defendant's motion.
On December 26, 2007, defendant filed a notice of appeal
from the December 18, 2007, order in compliance with Supreme Court
Rule 606 (210 Ill. 2d R. 606). See Netto v. Goldenberg, 266 Ill.
App. 3d 174, 178, 640 N.E.2d 948, 952 (1994), overruled on other
grounds by Holton v. Memorial Hospital, 176 Ill. 2d 95, 118-19,
679 N.E.2d 1202, 1212 (1997) (indicating the notice of appeal may
list either the order disposing of the posttrial motion or the
order entering the judgment).
II. ANALYSIS
On appeal, defendant contends a portion of the trial
court's restitution order is void because it is related to a dis-
missed count.
We begin by addressing the State's argument defendant
cannot raise this issue on her appeal from the revocation of her
probation because it relates to a condition of her probation.
Specifically, the State notes the following language from one of our
recent opinions:
"'When no direct appeal is taken from an
order of probation and the time for appeal has
expired, a reviewing court is precluded from
reviewing the propriety of that order in an
appeal from a subsequent revocation of that
probation, unless the underlying judgment of
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conviction is void.'" People v. Gregory, 379
Ill. App. 3d 414, 418, 883 N.E.2d 762, 765-66
(2008), quoting People v. Johnson, 327 Ill. App.
3d 252, 256, 762 N.E.2d 1180, 1183 (2002).
However, when a court revokes a defendant's probation, a new sentence
is imposed. People v. Gazelle, 165 Ill. 2d 93, 97, 649 N.E.2d 381,
383 (1995); see also 730 ILCS 5/5-6-4(e) (West 2006). In this case,
when the trial court resentenced defendant, it again imposed $2,979.-
68 in restitution. Thus, defendant is not challenging a condition of
her prior probation but rather part of her new sentence imposed after
the revocation of probation. Thus, our statement in Gregory does not
prohibit defendant from raising her restitution argument.
Moreover, we disagree with the State that, if the trial
court erred as to a portion of the restitution order, the restitution
order was only voidable. Defendant contends a portion of the court's
restitution order did not comply with section 5-5-6(d) of the Unified
Code of Corrections (Unified Code) (730 ILCS 5/5-5-6(d) (West 2006)).
It is well settled any portion of a sentence not authorized by
statute is void. People v. Thompson, 209 Ill. 2d 19, 23, 805 N.E.2d
1200, 1203 (2004). It is also well-established void orders may be
attacked at any time. Thompson, 209 Ill. 2d at 25, 805 N.E.2d at
1203. Recently, the Fifth District found a portion of a restitution
order was unauthorized by statute and thus concluded that portion was
void and not subject to procedural default. See People v. Mocaby,
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378 Ill. App. 3d 1095, 1101-02, 882 N.E.2d 1162, 1168-69 (2008).
Accordingly, we will address whether the restitution order
is authorized by section 5-5-6(d). That issue presents a question of
law that we review de novo. See People v. Walton, 357 Ill. App. 3d
819, 822, 829 N.E.2d 396, 399 (2005) (addressing whether the trial
court complied with the statute governing presentence-investigation
reports). We note the State does not contest defendant's assertion a
portion of the restitution order was erroneous.
Here, defendant asserts $988.13 of the $2,979.68 relates
to count IV, which was dismissed pursuant to the plea agreement. The
record supports defendant's assertion. The checks that served the
basis for counts I, II, and IV were in the amounts of $994.72,
$996.83, and $988.13, respectively. The checks for counts I and II
total $1,991.55, which is $988.13 less than the $2,979.68 restitution
order. Moreover, the financial institution's restitution letter
listed an additional check besides the two checks that served the
basis for counts I and II.
The only provision in the restitution statute addressing
dismissed charges states as follows:
"(d) In instances where a defendant has
more than one criminal charge pending against
him in a single case *** and the defendant stan-
ds convicted of one or more charges, a plea
agreement negotiated by the State's Attorney and
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the defendant[] may require the defendant to
make restitution to victims of charges that have
been dismissed or which it is contemplated will
be dismissed under the terms of the plea agree-
ment, and under the agreement, the court may
impose a sentence of restitution on the charge
or charges of which the defendant has been con-
victed that would require the defendant to make
restitution to victims of other offenses as
provided in the plea agreement." 730 ILCS 5/5-
5-6(d) (West 2006).
In this case, defendant's plea agreement did not provide
for restitution for any dismissed charges. Accordingly, the trial
court was not authorized under section 5-5-6(d) of the Unified Code
(730 ILCS 5/5-5-6(d) (West 2006)) to order restitution related to the
dismissed count IV. Thus, the unauthorized portion of the restitu-
tion order is void (see Thompson, 209 Ill. 2d at 23, 805 N.E.2d at
1203), and the amount of restitution should be reduced to $1,991.55.
Since we agree with defendant that a portion of the trial
court's restitution order is void, we do not address her alternative
argument.
III. CONCLUSION
For the reasons stated, we vacate that portion of the
restitution order that related to count IV, affirm the trial court's
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judgment in all other respects, and remand for the entry of an
amended restitution order in the amount $1,991.51.
Affirmed in part and vacated in part; cause remanded with
directions.
MYERSCOUGH and COOK, JJ., concur.
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