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05/25/89 the People of the State of v. Anthony Wayne Nash

May 25, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

ANTHONY WAYNE NASH, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

539 N.E.2d 822, 183 Ill. App. 3d 924, 132 Ill. Dec. 259 1989.IL.801

Appeal from the Circuit Court of Champaign County; the Hon. Robert J. Steigmann, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH

This case comes on appeal from the circuit court of Champaign County. Defendant was convicted of indecent solicitation of a child, ordered to pay restitution, and reimburse the county for the cost of his appointed defense attorney. Defendant appeals his conviction and the orders of restitution and recoupment.

The defendant Wayne Nash was charged by indictment on November 19, 1987, with the offense of attempt (aggravated criminal sexual abuse). On January 7, 1988, he was charged by information with indecent solicitation of a child. On November 24, 1987, at the arraignment of defendant, the presiding Judge entered a reimbursement order requiring defendant to reimburse the county for $1,000 in monthly installments of $25 for the costs of providing court-appointed representation.

On January 11, 1988, defendant's motion to dismiss the attempt charge was denied. On February 17, 1988, defense counsel, arguing that the indecent solicitation statute violated the separation of powers doctrine and was unconstitutionally vague, filed a motion to dismiss this charge. This motion was dismissed immediately prior to the bench trial. At trial, the parties entered into a stipulation. The stipulation was to the effect that the defendant, while a custodian in an elementary school, on October 22, 1987, prepared a note and placed it inside the desk of a 10-year-old student. The note read as follows:

"Hi Jessika!

I like you. You are real nice.

May I see you naked ? Please?! You can see me naked, too, if you like -- OK?

I won't hurt you. We will just look and touch -- OK? Please say yes. It will feel good and nobody will know. OK? Please answer. I like you! A BOY"

The State rested following the presentation of the stipulation, and the court granted defense counsel's motion for a directed verdict on the attempt charge but denied a directed verdict on the indecent solicitation charge. Defendant then testified that although he wrote the note he had no intention of engaging in the activity described in it. The court found defendant guilty of indecent solicitation of a child.

The court sentenced defendant to a jail term of 80 days and a probationary term of 30 months. In addition, the court ordered that the remainder of defendant's bond, approximately $300, be applied to restitution to the victim and defendant be responsible for additional restitution not to exceed $1,500. The court then affirmed the previous order requiring defendant to reimburse the county for $1,000 for his representation by court-appointed counsel.

We first consider the State's motion to supplement the record on appeal by adding an amended certificate of probation dated November 7, 1988, and filed November 28, 1988. The State filed this motion pursuant to Supreme Court Rule 329 (107 Ill. 2d R. 329), which provides a mechanism by which parties may supply omissions, correct errors, and settle disputes about whether the record on appeal accurately reflects what occurred at trial. This rule has been construed to authorize supplementation of the record only with documents that were actually before the trial court. Johnson v. Matviuw (1988), 176 Ill. App. 3d 907, 531 N.E.2d 970.

The amended certificate provides that defendant will make a restitution payment of $123 to the county clerk as reimbursement for the victim's counseling within the first 12 months of probation. The amended certificate is germane to the issue of whether the trial court entered restitution in a fixed amount, and defendant has not ...


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