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People v. Mccarty

OPINION FILED APRIL 7, 1986.

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

v.

DEL E. MCCARTY, DEFENDANT-APPELLANT. THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

DELMAR MCCARTY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Sangamon County; the Hon. C. Joseph Cavanagh, Judge, presiding.

JUSTICE MORTHLAND DELIVERED THE OPINION OF THE COURT:

The defendant appeals from denial of his motion to withdraw his guilty pleas in two separate causes comprising 12 counts of deceptive practices. Ill. Rev. Stat. 1983, ch. 38, par. 17-1(B)(d).

Cause No. 4-85-0425, consisting of three counts of deceptive practices, is based upon the defendant's efforts to purchase an automobile from Nancy Stewart in Late October and November 1984. According to the victim's written narrative, the defendant purchased a used automobile from her for $3,500. Initially, the defendant wrote Stewart a check for $3,000 and received possession of the vehicle. A second check for $500 followed approximately a week later, and Stewart signed over the vehicle's title to the defendant. These two checks were both written on an account which had been closed for several weeks. After much effort, the victim obtained a third check from the defendant in the amount of $3,550; derived from the purchase price plus $50 for the victim's "inconvenience." This third check was a type of counter check which purported to draw upon the account of "M&M Trucking," but contained an invalid authorization number.

The defendant stands convicted of nine more counts of deceptive practices in cause No. 4-85-0426. These counts arose from various incidents in which the defendant attempted to obtain goods or services with a counter check which utilized a nonexistent authorization code. Although the State originally charged the defendant with seven counts of forgery, along with deceptive practices, the forgery counts were dismissed when the defendant pleaded guilty. With one exception, the checks at issue involved a face amount of more than $150. Count XV of the information in No. 4-85-0426 alleges that the defendant delivered a bank check in the amount of $60 to a restaurant in payment for food and drinks, knowing the check would not be paid by the depository.

At the defendant's first appearance in cause No. 4-85-0425, the court read to him the complaint which charged him with deceptive practices. The court also informed the defendant that the offense charged was a Class 4 felony and told him of the possible penalties. The defendant indicated he understood the potential penalties as well as his right to trial and to representation by counsel.

The State replaced the complaint in No. 4-85-0425 with a three-count information. This charging instrument, along with the information in No. 4-85-0426, states the amount of each check at issue; alleges that the check was delivered with intent to defraud and obtain control over the named victim's property; alleges the defendant knew the check would not be paid by the depository; and cites to the pertinent section of the Criminal Code of 1961. Ill. Rev. Stat. 1983, ch. 38, par. 17-1(B)(d).

On February 20, 1985, the defendant moved to withdraw his "not guilty" plea in cause No. 4-85-0425. The court read to the defendant each of the three counts, informed him that each offense constituted a Class 4 felony, and informed him of the possible penalties. The court also informed the defendant that he had the right to persist in his plea of not guilty, to undergo trial, and to testify and call witnesses on his own behalf. The defendant stated that he understood and waived each of these rights. The prosecution stated the factual basis for the three counts in No. 4-85-0425, and the defendant stipulated to these facts. The court accepted the defendant's guilty plea after once again ascertaining that he understood and voluntarily waived his rights.

On March 28, 1985, the defendant pleaded guilty to the nine counts of deceptive practice in cause No. 4-85-0426. The court repeated the warnings given to the defendant at the earlier hearing. The State set forth the underlying facts on each count and the defendant stipulated to their accuracy. The court then accepted the defendant's guilty plea to the nine counts of deceptive practices and dismissed the forgery counts against him.

The court consolidated the two causes for sentencing and a hearing was held March 28, 1985. After considering a presentence report and testimony of two of the victims, the court sentenced the defendant to two years' imprisonment on each of the 12 counts, the terms to run concurrently.

On April 23, 1985, the defendant filed motions to withdraw his guilty plea in both causes and a hearing was held on these motions. The court denied the defendant's motions and the defendant appealed.

The defendant argues before this court that the trial court erred in convicting and sentencing him for felony deceptive practices when the informations in the two causes alleged only the elements of misdemeanor deceptive practices. The defendant then argues that the trial court failed to properly admonish him as to the nature of the offense charged as required under Supreme Court Rule. 87 Ill.2d R. 402(a)(1).

Section 17-1(B)(d) provides:

"A person commits a deceptive practice when * * *:

(d) With intent to obtain control over property or to pay for property, labor or services of another * * * he issues or delivers a check or other order upon a real or fictitious depository for the payment of money, knowing that it will not be paid by ...


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