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08/04/88 the People of the State of v. Theodore E. Roby

August 4, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

THEODORE E. ROBY, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

527 N.E.2d 623, 172 Ill. App. 3d 1060, 123 Ill. Dec. 160 1988.IL.1222

Appeal from the Circuit Court of Macon County; the Hon. John L. Davis, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE GREEN delivered the opinion of the court. McCULLOUGH and SPITZ, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GREEN

Following a jury trial, on December 18, 1987, the circuit court of Macon County convicted defendant Theodore E. Roby of driving under the influence of alcohol (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11-501) and the enhanced offense of driving while license revoked with a prior license revoked conviction , the original revocation having resulted from a conviction for DUI. (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 6-303(d).) On January 8, 1988, the court sentenced defendant to 364 days' imprisonment for the DUI offense and an extended-term sentence of five years' imprisonment for the EDWR offense.

Defendant now appeals, contending: (1) his felony conviction for EDWR cannot stand because the court failed to instruct the jury regarding one of the elements of that offense; and (2) the trial court erred in imposing an extended-term sentence for the felony EDWR conviction. We affirm.

We first address defendant's contention that the jury instructions were deficient. Section 6 -- 303 of the Illinois Vehicle Code (Code) provides in part as follows:

"(a) Any person who drives or is in actual physical control of a motor vehicle on any highway of this State at a time when such person's driver's license . . . is revoked . . . shall be guilty of a Class A misdemeanor.

(d) Any person convicted of a second or subsequent violation of this Section shall be guilty of a Class 4 felony if the original revocation or suspension was for a violation of Section . . . 11-501 [driving under the influence of alcohol] . . .." Ill. Rev. Stat. 1987, ch. 95 1/2, pars. 6-303(a), (d).

Defendant contends the jury instructions tendered by the State and given by the trial court concerning the definition of, and issues necessary to prove, the EDWR offense were deficient in that they failed to contain the element that defendant had been convicted previously of DUI, which conviction resulted in the original revocation of his driver's license.

We agree. A prior DUI offense, which results in the revocation of a person's license, is an element of the EDWR offense found in section 6-303(d) of the Code. Thus, the State must also prove a defendant violated section 11-501 of the Code (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11-501) in order to obtain a section 6-303(d) felony conviction. (People v. Smith (1987), 162 Ill. App. 3d 739, 516 N.E.2d 335.) We further agree the trial court must properly instruct a jury regarding all elements of the crime charged and, contrary to the State's argument, failure to object to substantial defects contained in jury instructions will not result in waiver of the issue on appeal. People v. Page (1987), 163 Ill. App. 3d 959, 516 N.E.2d 1371.

However, the State argues the proof of defendant's guilt of the EDWR offense was so strong that any error committed in instructing the jury was harmless. As noted in People v. Jones (1979), 81 Ill. 2d 1, 405 N.E.2d 343:

"'Even though error may have been committed in giving or refusing instructions it will not always justify reversal when the evidence of defendant's guilt is so clear and convincing that the jury could not reasonably have found him not guilty.'" (Jones, 81 Ill. 2d at 9, ...


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