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People v. Ellis

OPINION FILED APRIL 22, 1977.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

DECARLO ELLIS, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. PAUL F. GERRITY, Judge, presiding.

MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

Defendant appeals from an order revoking his probation and sentencing him to a term of three to nine years. He contends (1) the State failed to prove that he violated his probation, and (2) the court erred when it sentenced him without knowing the facts surrounding the commission of his original offense.

On November 23, 1973, Judge Pavlik accepted defendant's guilty plea to a charge of robbery (Ill. Rev. Stat. 1973, ch. 38, par. 18-1(a)) and sentenced him to two years probation. Subsequently, a petition for violation of probation was filed against him, alleging he committed the offense of burglary in violation of section 19-1(a) of the Criminal Code of 1961. (Ill. Rev. Stat. 1975, ch. 38, par. 19-1(a).) At a hearing held before Judge Gerrity to consider the revocation of his probation, the following pertinent facts were adduced.

For the State

Frank Kooper

He is a Chicago Heights police officer. On May 24, 1975, at about 1:15 a.m. he received a call that a burglary was in progress at "Distributor Incorporated," a liquor distributing business located at 1524 Union. Upon arriving there, he observed defendant and two other black males jump from a three-foot by three-foot broken window on the north side of the building. The men ran toward a 1967 Chevrolet parked about 25 feet from the building. Before they reached the automobile, he apprehended them. In the back seat of the car he found 150 bottles of liquor. He then notified Mr. Costello (an agent of Distributor), who came to the building.

Over a continuing hearsay objection by defense counsel, Officer Kooper testified that Costello identified the bottles as belonging to Distributor. He also stated that Costello never indicated whether he knew defendant or whether he had ever given defendant permission to enter the building.

Although he stated on direct examination that Distributor is a corporation, he admitted on cross-examination he had no personal knowledge of this fact.

For defendant

Defendant on his own behalf

At the time in question he was in the vicinity of Distributor; however, he did not burglarize it. Rather, he was walking by the building on his way to the "Crib" around the corner, when police apprehended him.

On cross-examination, he admitted knowing Morris Bennet and Tim Jackson (the other two accused men) for one and two years respectively. He was walking down the street on the morning in question, when Bennet drove up and informed him that he and Jackson were "fixing to break in the window" at Distributor. He told Bennet that he "didn't want to be in trouble" because he was on probation. He denied going near the window or the building. He further denied seeing any bottles either passed out of the building window or in Bennet's car.

Based on this evidence, the court found that defendant had violated his probation. At the sentencing hearing, the court did not receive evidence of the original offense. However, it did receive a presentence report. Further, it held a hearing in aggravation and mitigation, during which defendant's mother testified on his behalf. At the conclusion of ...


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