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People v. Allen

OPINION FILED NOVEMBER 21, 1985.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,

v.

DIANE ALLEN, APPELLEE.



Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Roger J. Kiley, Jr., Judge, presiding.

JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:

This case involves the unusual problem of an incorrect transcript of proceedings caused by a court reporter's error in transcribing the stenographic notes taken at trial. The defendant, Diane Allen, was charged in the circuit court of Cook County with murder (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(a)(3)), conspiracy to commit armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 8-2), and attempted armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 8-4(a)). Following a jury trial, the defendant was found guilty of conspiracy and attempted armed robbery but not guilty of murder. The conspiracy conviction was merged with the attempt conviction, and the defendant was sentenced to eight years in prison.

The appellate court reversed the attempted-armed-robbery conviction and remanded for a new trial on that issue, finding that the trial judge misstated the law when reading the attempted-armed-robbery instruction to the jury. The appellate court also directed the circuit court, on remand, to enter judgment and impose sentence on defendant's conspiracy conviction, noting that both convictions may stand where, as in this case, the object of the conspiracy was broader than the specific crime committed. 116 Ill. App.3d 996.

The common law record contained a written attempted-armed-robbery instruction, marked given, which correctly stated:

"To sustain the charge of attempt, the State must prove the following propositions:

Third: That the defendant did not act under compulsion."

However, the transcript of proceedings, page 608, indicated that the trial judge, in reading the instruction to the jury, stated:

"To sustain the charge of attempt, the State must prove the following propositions:

Third: That the defendant, or one for whose conduct she is legally responsible, did not act under compulsion." (Emphasis added.)

After the appellate court reversed the attempted-armed-robbery conviction, the State filed a motion in the appellate court for leave to supplement the record and also filed a petition for rehearing. The State contended, in its motion for leave to supplement the record, that the transcript of proceedings was inaccurate in that the trial judge did not include the words "or one for whose conduct she is legally responsible" when reading the instruction to the jury as to the third proposition of the attempted-armed-robbery instruction. The appellate court denied the motion for leave to supplement the record and denied the petition for rehearing. The State's petition for leave to appeal to this court was granted pursuant to our Rule 315 (94 Ill.2d R. 315).

After leave to appeal was granted, the State filed a motion in this court requesting leave to supplement the record, or, in the alternative, to have the cause remanded to the trial court for the limited purpose of conducting a hearing pursuant to our Rule 329 (87 Ill.2d R. 329). Rule 329 provides for amendment of the record on appeal and states in part:

"Any controversy as to whether the record accurately discloses what occurred in the trial court shall be submitted to and settled by that court and the record made to conform to the truth."

We granted the State's motion, in part, by remanding the cause to the circuit court of Cook County for the limited purpose of conducting an evidentiary hearing, pursuant to Rule 329, to determine whether page 608 of the transcript of proceedings (i.e., the ...


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