Appeal from the Circuit Court of Macon County; the Hon. Jerry
L. Patton, Judge, presiding.
JUSTICE MCCULLOUGH DELIVERED THE OPINION OF THE COURT:
The defendant, Naomi Edwards, appeals her conviction of theft of property having a value in excess of $300. She was charged by information with alternative counts of theft of property having a value in excess of $300. She was convicted after a jury trial and was placed on probation for a period of 24 months, with conditions of probation specifically including that she make restitution in the sum of $5,884.92 and serve a jail term of 30 days. The defendant presents three issues for review by this court: (1) whether plain error occurred when the jury was not instructed as to an element of theft, "pursuant to a common scheme or design," which was charged in the information; (2) whether the trial court erred by failing to consider her ability to pay restitution and failing to determine a payment schedule or the time within which restitution was to be made; and (3) whether the trial court abused its discretion by sentencing her to a jail term of 30 days as a condition of probation.
Inasmuch as the parties are acquainted with the facts in this case, they will be reviewed only insofar as they are deemed appropriate for a decision in this case.
The defendant was charged with two counts of theft of property having a value in excess of $300 in an information filed May 24, 1984. Count I alleged that the defendant committed the theft on or about May 23, 1984, and count II charged and alleged that the defendant committed theft pursuant to a common scheme or design, between the approximate dates of January 1, 1984, and May 24, 1984. See Ill. Rev. Stat. 1983, ch. 38, pars. 16-1(a)(1), 111-4(c).
The only issue instruction given was as follows:
"To sustain the charge of theft of property exceeding $300.00 in value, the State must prove the following propositions:
FIRST: That [a banking corporation] was the owner of the United State's currency in question; and
SECOND: That the defendant knowingly exerted unauthorized control over the United States currency exceeding $300.00 in between January 1, 1984 and May 24, 1984; and
THIRD: That the defendant intended to deprive [a banking corporation] permanently of the use or benefit of the United States currency.
If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.
If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty."
This instruction as originally submitted by the State did not show any value or the dates as to the property taken. At the conference on instructions, the defense counsel objected that defendant was entitled to have the dates shown on both counts, further stating:
"I think that's a proper case to give a modified instruction to show that this money was taken at some time between the period of January 1, 1984 and May 23, 1984, because I think that's both of those dates they have alleged in there and I think we're entitled to have an instruction * * *."
Defense counsel further stated that he believed the State had to instruct as to each count, but that the date had to be shown. The prosecutor responded consistent with an earlier argument made on defendant's motion for election on counts, stating that there was not any issue about the dates, that it was just two forms of the same charge, and that it did not make a difference when in the period of time the money was taken. Defense counsel argued that the State had to prove that the defendant took the money within the dates charged. The court directed that the instruction be modified so that it showed that (1) the amount of property ...