APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT
523 N.E.2d 631, 169 Ill. App. 3d 187, 119 Ill. Dec. 875 1988.IL.656
Appeal from the Circuit Court of Christian County; the Hon. Joseph L. Fribley, Judge, presiding.
JUSTICE WELCH delivered the opinion of the court. LEWIS and CALVO, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WELCH
Following a jury trial in the circuit court of Christian County, defendant-appellant, Willie C. Roby, was convicted on January 2, 1986, of three counts of offense relating to motor vehicles and was sentenced to concurrent terms of four years' imprisonment, fined $500 and ordered to pay $700 restitution. Defendant raises three issues on appeal: (1) that the State's failure to disclose the fact that one of the State's witnesses was a paid informant for the Illinois Secretary of State denied him the right to a fair trial; (2) that the trial court erred in imposing upon him a $500 fine while at the same time ordering him to pay $700 restitution without a finding that defendant had the ability to pay the $500 fine and without specifying the time limit or method of making the $700 restitution; and (3) that the defendant is entitled to a $5-per-day credit against his fine for each of the 21 days he spent in the county jail prior to posting bond.
The sequence of events leading to defendant's arrest and conviction consisted of the theft of one automobile, the purchase of a similar automobile of lesser value, and the substitution of the vehicle identification number from the automobile of lesser value to the vehicle of greater value. After substituting the VIN from the automobile purchased for $200 to the stolen vehicle, the stolen vehicle was sold for $700. Testimony adduced at trial included the following.
Marty Smith, the owner of Marty's Auto Salvage, testified that on December 31, 1984, he sold a silver 1977 Camaro to the defendant for $200. Although Claudious Brooks signed the title to this vehicle, the $200 was paid to Mr. Smith by the defendant.
John Falkenhein, owner of the red 1976 Camaro, testified that the vehicle had been stolen on December 27, 1984. He testified that he was able to identify the vehicle because he had repaired a rusted area on the hood of the automobile, had replaced a passenger door, had replaced a section of the metal on a rear quarter panel, and had installed a custom spoiler.
James Krouse, a convicted felon acquainted with the defendant, testified that on December 27, 1984, he saw the defendant and a red Camaro at Claudious Brooks' garage. On that date the defendant asked him if he knew of a place where defendant could get a title and a VIN. During the first week of January 1984, he again saw the defendant and the red Camaro at Claudious Brooks' garage and observed an unknown black man remove the dashboard from the red Camaro and replace it with a different one.
John King, a trooper with the Illinois State Police, testified that the VIN mounted on the dashboard of the red, 1976 Camaro did not appear to
Connie Emerson testified that Claudious Brooks and the defendant came to her home, aware that Mrs. Emerson's daughter was interested in purchasing a Camaro, and offered to sell her the red 1976 Camaro. She stated that Mr. Brooks told her the vehicle actually belonged to the defendant, but his (Claudious Brooks) name appeared on the title because the defendant was going through a divorce. After some negotiation, the defendant accepted $700 as the selling price for the vehicle. Tim Emerson, Connie Emerson's husband, testified that the bank from which he borrowed the money to pay for the car drafted a check in the name of Claudious Brooks and that Mr. Brooks cashed the check and gave an unknown amount of money to the defendant.
At the close of the evidence, the jury deliberated and returned a guilty verdict on all counts. Prior to the hearing on post-trial motions and sentencing, defendant's attorney discovered that Mr. Smith, the owner of the auto salvage who testified for the State, was a paid informant for the Illinois Secretary of State. It was stipulated that neither the prosecution nor the defense was aware, prior to or during the trial, that Mr. Smith had been paid to provide information to the Secretary of State in cases not related to the case at bar. The trial court denied defendant's motion for a new trial and sentenced defendant to concurrent terms of four years' imprisonment and two years of mandatory supervised release. Additionally, defendant was fined $500 plus costs and was ordered to make restitution in the amount of $700.
Defendant's first contention on appeal is that the State denied his right to a fair trial by failing to disclose all material or information in its possession or control tending to negate the guilt of the accused as to the offense charged. (107 Ill. 2d R. 412(c).) While the State counters that it cannot be expected to disclose evidence of which it has neither knowledge nor possession (see People v. Spurlark (1979), 74 Ill. App. 3d 43, 57, 392 N.E.2d 214, 224), defendant asserts that had the State used diligent good-faith efforts to discover and disclose that Mr. Smith had acted as a paid informant for the Illinois Secretary of State (107 Ill. 2d Rules 412(f), (g)), this information could have been used by the ...