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02/03/88 the People of the State of v. Cecil Jerome Matthews

February 3, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

CECIL JEROME MATTHEWS, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

519 N.E.2d 126, 165 Ill. App. 3d 342, 116 Ill. Dec. 536 1988.IL.127

Appeal from the Circuit Court of Macon County; the Hon. Rodney A. Scott, Judge, presiding.

APPELLATE Judges:

JUSTICE SPITZ delivered the opinion of the court. LUND and KNECHT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SPITZ

On August 22, 1985, in Macon County circuit court, Cecil Jerome Matthews was convicted of burglary in violation of section 19-1(a) of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1983, ch. 38, par. 19-1(a)). He received two years' probation. His probation was revoked May 12, 1987, based on a failure to report to his probation officer and a charge of retail theft in violation of section 16A-3(a) of the Code (Ill. Rev. Stat. 1983, ch. 38, par. 16A-3(a)). He was sentenced to four years' imprisonment. He appeals, contending the retail theft charge was not proved by a preponderance of the evidence and that, accordingly, the sentencing order must be vacated and a new sentencing hearing held. We affirm the decision of the circuit court.

The probation order entered September 13, 1985, ordered defendant, inter alia, to report to his probation officer as directed and to refrain from violating any criminal statute. Three reports of violation were filed relative to defendant's probation. The first, filed January 24, 1986, concerned the possession of a controlled substance and was later withdrawn on the State's motion. The second report, filed February 7, 1986, stated defendant violated his probation order by failing to report to his probation officer after October 9, 1985. That violation was proved and is not at issue in this appeal. The third report, filed April 28, 1986, stated defendant had committed retail theft in violation of section 16A-3(a) of the Code (Ill. Rev. Stat. 1983, ch. 38, par. 16A-3(a)).

At the May 1, 1987, hearing, Gregory Rieck, a security officer at the Venture Store in Decatur, testified that on December 10, 1985, he observed defendant put on a coat and leave the store.

"Q. [Assistant State's Attorney]: OK, and at that time did anything unusual -- excuse me, did you observe anything unusual?

A. Yes, I did.

Q. Would you tell the court what that was, please?

A. I was watching four subjects from our security tower.

Q. And what, if anything, did you see?

A. I witnessed a subject placing a coat on him and ...


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