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01/28/94 PEOPLE STATE ILLINOIS v. ROBERT GOODBRAKE

January 28, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
ROBERT GOODBRAKE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Madison County. No. 90-CF-783. Honorable Charles V. Romani, Judge Presiding.

Lewis, Goldenhersh, Maag

The opinion of the court was delivered by: Lewis

PRESIDING JUSTICE LEWIS delivered the opinion of the court:

Defendant appeals from the denial of his motion to reduce his sentence, raising two issues on appeal: (1) whether the trial court erred in sentencing defendant where the record is not accurate as to the history of defendant's criminality as required under section 5-3-1 of the Unified Code of Corrections (Ill. Rev. Stat. 1991, ch. 38, par. 1005-3-1); and (2) whether the trial court erred in deciding that it had no authority to reduce a negotiated sentence.

Defendant was originally charged by indictment on September 13, 1990, with two counts of first-degree murder. An amended information was filed on October 16, 1991, charging defendant with one count of first-degree murder, one count of second-degree murder, and unlawful possession of weapons by a felon. On October 22, 1991, defendant pled guilty in a negotiated plea to second-degree murder and unlawful possession of a weapon by a felon, and the first-degree murder charge was dismissed. The trial Judge sentenced the defendant to consecutive terms of 15 years' imprisonment for second-degree murder and three years' imprisonment for unlawful possession of a weapon by a felon. On November 13, 1991, defendant filed a motion to reduce his sentence, which was denied by an order filed on January 30, 1992, from which defendant appeals.

Defendant first complains that the trial court did not have an accurate history of his criminality as required by section 5-3-1 of the Unified Code of Corrections, which states as follows:

"A defendant shall not be sentenced for a felony before a written presentence report of investigation is presented to and considered by the court.

However, the court need not order a presentence report of investigation where both parties agree to the imposition of a specific sentence, provided there is a finding made for the record as to the defendant's history of delinquency or criminality, including any previous sentence to a term of probation, periodic imprisonment, conditional discharge, or imprisonment. (Ill. Rev. Stat. 1991, ch 38, par. 1005-3-1.)

The record reveals the following exchange during the negotiated plea as to the defendant's prior record:

"THE COURT: Criminal history for the record?

MR. JENSEN: The defendant has two prior convictions for Burglary, one dated 1974 and one dated 1975.

MR. WEITZMAN: Judge, we disagree with the 1975 Burglary conviction. I believe that was actually his brother. My client advised me that he has only a single Burglary conviction. We do not know, whether that is accurate or not, would impact --

THE COURT: What was the sentence on the Burglary?

DEFENDANT GOODBRAKE: Oh, it was one to ...


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