People v. Street

19 Ill. App. 3d 541 (1974) 311 N.E.2d 796

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
BOBBY STREET, Defendant-Appellant.

No. 12421.

Illinois Appellate Court — Fourth District.

May 21, 1974.

Callis and Filcoff, of Granite City, for appellant.

No appearance for the People.

Appeal dismissed.

Mr. JUSTICE CRAVEN delivered the opinion of the court:

This case was originally appealed to this court to review the defendant's conviction for burglary and theft. Upon the original appeal we affirmed the burglary conviction and reversed the conviction for theft. (See People v. Street, 11 Ill. App. 3d 243, 296 N.E.2d 606.) The mandate of this court required the circuit court to issue an amended mittimus showing the burglary conviction and deleting the conviction for theft. The cause was remanded with directions to accomplish the issuance of an amended mittimus. Upon remand, the defendant sought resentencing and consideration of periodic imprisonment. The trial court dismissed the petition for resentencing and periodic imprisonment. The defendant filed a notice of appeal.

• 1 The mandate of this court gave the trial court jurisdiction to do only that which was required under the mandate of this court. (See Hornof v. The Kroger Co., 40 Ill. 2d 545, 240 N.E.2d 658; Beaven v. Village of Palatine, 106 Ill. App. 2d 160, 245 N.E.2d 560; Hamilton v. Faulkner, 96 Ill. App. 2d 415, 238 N.E.2d 631.) The defendant cannot, by a petition for resentencing, reopen and relitigate issues that were or could have been raised upon the original appeal.

• 2 In this case the trial court did that which the mandate of this court required it to do and refused to do anything other than that. Under the cited authority, this was proper and there was no action by, nor any order of, the trial court that was final and again appealable. Accordingly, this appeal should be, and the same is, dismissed.

Appeal dismissed.

SIMKINS, P.J., and CLARK, J., concur.