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12/10/87 the People of the State of v. Grover Smith


December 10, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

GROVER SMITH, SR., DEFENDANT-APPELLANT

APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

516 N.E.2d 335, 162 Ill. App. 3d 739, 114 Ill. Dec. 180 1987.IL.1834

Date Reported: Original Opinion of October 6, 1987 at 162 Ill. App. 3d 739.

APPELLATE Judges:

JUSTICE KARNS delivered the opinion of the court. HARRISON, P.J., and WELCH, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KARNS

Grover Smith, Sr., was convicted of violating section 6-303(d) of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 6-303(d)) after a trial by jury in the circuit court of Jackson County. He was sentenced to 23 months' imprisonment and fined $1,000. On appeal, Mr. Smith argued that the State failed to prove him guilty beyond a reasonable doubt because the State did not introduce certified copies of the records of his prior convictions. In the alternative, he argued that the introduction of certified copies of his previous orders of revocation unfairly prejudiced the jury because such prior convictions were not elements of the offense which the State had to prove, but only factors to be used by the sentencing Judge in determining whether the offense should be enhanced to a felony. We held that a certified copy of an order of revocation which states that the reason for such revocation was driving under the influence of alcohol was sufficient evidence to prove the previous DUI convictions for purposes of section 6-303(d). We further held that such previous convictions were elements of the enhanced offense which had to be proved to the trier of fact.

Mr. Smith also appealed the imposition of the $1,000 fine, arguing that he was financially unable to pay it. We stated in our opinion that because he did not advance this argument in his post-trial motion for a new trial, it was waived for purposes of appeal. In his petition for rehearing, Mr. Smith maitains that because sentencing does not necessarily occur within 30 days nf the verdict, the time limit within which a motion for new trial must be filed, a defendant would be prevented from appealing a sentence imposed more than 30 days after the return of the verdict. In Mr. Smith's case, he filed a motion for a new trial on November 26, 1986, 30 days after the return of the verdict. Sentencing occurred later that day. Mr. Smith could not have included a request for relief from the sentence in his motion for a new trial because it had not yet been imposed. We hold, therefore, that review of the severity of a sentence is not waived by failing to include it in a post-trial motion for a new trial.

Considering Mr. Smith's argument on the merits, however, we conclude that the imposition of the $1,000 fine was not an abuse of the trial court's discretion and should not be vacated on appeal. Mr. Smith was given one year from the date of his release to pay the fine and the record supports the trial court's Conclusion that Mr. Smith was financially able to pay the fine.

The judgment of the circuit court of Jackson County is affirmed.

CASE RESOLUTION

Judgment affirmed.

19871210

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