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People v. Hale

OPINION FILED APRIL 30, 1981.

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

v.

JIMMIE C. HALE, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Clay County; the Hon. DENNIS L. BERKBIGLER, Judge, presiding.

MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

Mr. JUSTICE JONES delivered the opinion of the court:

Rehearing denied May 15, 1981.

Defendant, Jimmie C. Hale, was charged by information in the circuit court of Clay County with felony theft on September 3, 1978. At a preliminary hearing defendant, represented by appointed counsel, pleaded guilty to the offense and was placed on two years' probation pursuant to a plea agreement. Conditions of probation were that defendant was to serve 60 days in the county jail and to pay restitution and court costs within nine months. Defendant was brought before the trial court on several occasions for failure to make the ordered restitutionary payments. Each time defendant informed the court he would take care of the matter promptly, but by the time of the March 19, 1980, hearing it was undisputed that defendant had paid only $52 of the restitution and still owed in excess of $260. The trial court revoked defendant's probation and sentenced him to two years in the penitentiary. Defendant now appeals both the original guilty plea and the revocation of probation, which was based upon the court's determination that defendant's refusal to pay restitution was willful.

• 1 In view of the fact that the trial court, after sentencing defendant to probation, failed to admonish him of his right to appeal, as required by Supreme Court Rule 605(b) (73 Ill.2d R. 605(b)), we have concluded that we should consider defendant's appeal of his original conviction upon his plea of guilty. (See People v. Pulley (1979), 75 Ill. App.3d 193, 394 N.E.2d 47.) The issue raised in appeal of this conviction is whether Supreme Court Rule 402 (73 Ill.2d R. 402) was substantially complied with at the time defendant's guilty plea was accepted. Defendant contends it was not, but we must disagree.

Rule 402 in pertinent part provides:

"In hearings on pleas of guilty, there must be substantial compliance with the following:

(a) * * * The court shall * * * first * * * determin[e] that [defendant] understands the following:

(1) the nature of the charge;

(2) the minimum and maximum sentence * * *

(3) that the defendant has the right to plead not guilty, * * *

(4) * * * by pleading guilty he waives the right to a trial by jury and the right to be confronted with the witnesses against him.

(b) * * * The court shall * * * first determin[e] that the plea is voluntary. If the tendered plea is the result of a plea agreement, the ...


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