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March 21, 1994


Appeal from the Circuit Court of Du Page County. No. 91-CF-1628. Honorable Ronald B. Mehling, Judge, Presiding.

Inglis, McLAREN, Geiger

The opinion of the court was delivered by: Inglis

PRESIDING JUSTICE INGLIS delivered the opinion of the court:

Defendant, Kenneth Caldwell, was convicted of forgery (Ill. Rev. Stat. 1991, ch. 38, par. 17-3(a)(2) (now 720 ILCS 5/17-3(a)(2) (West 1992))). The court sentenced him to two years' probation and ordered him to pay $5,500 in restitution. Defendant appeals, raising as his sole contention that the trial court erred in ordering restitution in an amount greater than the amount of the forged check charged in the indictment.

The indictment alleged that defendant, "with intent to defraud, knowingly delivered to Jennifer M. Ocampo * * * a document apparently capable of defrauding another, Jennifer Ocampo, said document being check # 108129 of Block and Company, drawn on the First National Bank of Mount Prospect, dated 4/15/91, payable to Robert Turner in the amount of $1,402.03, signed as maker K.L. Block, and endorsed with the wording, 'Robert Turner pay to the order of Jennifer Ocampo,' knowing the document to have been thus made." Defendant contends on appeal that restitution could only be ordered for $1,402.03, the amount of the forged check for which defendant was charged.

The cause proceeded to a bench trial and the following evidence was adduced: Jennifer Ocampo met defendant while the two were working in the same shopping mall. On April 17, 1991, defendant telephoned Ocampo and asked her to meet him at the Gary Wheaton Bank in Carol Stream, Illinois, where Ocampo had a checking account. Ocampo agreed, and the two met at the bank. Defendant told Ocampo that he had started a business, and he asked whether Ocampo would deposit a check into her account so that he could withdraw funds. Defendant gave Ocampo two checks. The first was issued by Block and Company in the amount of $1,402.03, payable to Robert Turner and had already been endorsed in that name. Ocampo saw defendant endorse the check over to her. The second check Ocampo deposited for defendant was in the amount of $2,000.

According to Ocampo, defendant told her that he owned Block and Company and that Robert Turner was an employee and friend who owed defendant money. Defendant told Ocampo that the check was in repayment of a loan. Defendant and Ocampo approached the teller's window, where Ocampo deposited the checks and simultaneously requested a withdrawal of $1,000 at defendant's direction. Ocampo gave defendant the $1,000 and the deposit slip. She refused defendant's offer to accept $500 for her trouble and for continuing help in cashing forthcoming checks.

Two days later, defendant asked Ocampo to deposit two more checks and withdraw $2,000. Again, the checks were issued by Block and Company. Ocampo complied and gave defendant $2,000 cash that she received from the transaction. Ocampo later received notice from the bank that her checking account was overdrawn and that payment had been stopped on the checks she had deposited for defendant. She told defendant of the problem, and defendant assured Ocampo that he would take care of the problem. Ocampo never heard from defendant again.

Terry Anderko, a teller at the Gary Wheaton Bank, testified that at approximately 3:45 p.m. on April 17, 1991, a man and woman approached her window. The woman made a "split deposit"; that is she deposited checks into her account and simultaneously withdrew $1,000 in cash. Anderko remembered the incident because she had made an error in the transaction and defendant had approached her window to inform her of the mistake. Anderko identified defendant and Ocampo from photographs taken by a surveillance camera in the bank.

Thomas Marzullo, a financial officer for Block and Company, testified that Robert Turner was a sales representative for Block and Company, and the company sent Turner's commission checks through the United States mail. Turner had stated that he had not received the check in question so the company had stopped payment on the check. Marzullo did not know defendant, and the company records showed that defendant did not work for Block and Company.

Robert Turner testified that he worked for Block and Company. He usually received his checks on the 15th and 30th of each month. On April 16, 1991, when he had not received his first check of the month, he contacted the company and later received a replacement check. Turner did not know defendant, had not borrowed money from him, and had never agreed to repay a loan with his April 15, 1991, commission check. Turner did not give defendant permission to sign his name on the back of the check or to give it to anyone else.

John Gorajczyk, a document examiner from the Du Page County Crime Laboratory, testified that he compared the handwriting from the endorsement on the check with defendant's handwriting exemplars. In Gorajczyk's opinion, there was a high probability that defendant wrote Robert Turner's name. Gorajczyk could not make a positive identification. Gorajczyk also believed that the person who wrote "Robert Turner" on the back of the check also wrote "pay to the order of Jennifer Ocampo" on the back of the check.

The court found defendant guilty of forgery. At the sentencing hearing, Jennifer Ocampo testified that the Gary Wheaton Bank had obtained a judgment against her in the amount of $5,500 for the four checks she had deposited at defendant's behest between April 17, 1991, and April 19, 1991. The State requested that defendant be given probation and ordered to pay restitution in the amount of $5,500. Defense counsel also requested that defendant receive probation and stated that the defense had no objection to an order of restitution as long as an actual judgment against Ocampo was produced. The court sentenced defendant to two years' probation and ordered him to pay $5,500 restitution. Defendant filed a timely notice of appeal.

On January 11, 1993, the parties appeared before the court and informed the court that defendant had been convicted of a crime in Will County and had been sentenced to imprisonment. Defense counsel requested that defendant's probation in the instant case be terminated unsuccessfully and asked whether the restitution could be shown in a civil judgment. The court agreed and entered an order stating, "1) Defendant unsatisfactorily terminated from ...

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