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08/23/94 PEOPLE STATE ILLINOIS v. KERMIN A. TINKHAM

August 23, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
KERMIN A. TINKHAM, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Edgar County. No. 93CF60. Honorable Ralph S. Pearman, Judge Presiding.

As Corrected September 29, 1994. Released for Publication October 5, 1994.

Honorable Frederick S. Green, J., Honorable John T. McCULLOUGH, P.j., Honorable James A. Knecht, J.

The opinion of the court was delivered by: Green

JUSTICE GREEN delivered the opinion of the court:

Section 11-501 of the Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/11-501 (West 1992)) creates the offense of driving a motor vehicle while under the influence of alcohol or drugs (DUI) and provides for penalties. Section 11-501(d)(1) of the Vehicle Code states:

"(d) Every person convicted of committing a violation of this Section shall be guilty of aggravated driving under the influence of alcohol or drugs or a combination of both which shall be a Class 4 felony if:

(1) such person committed a violation of paragraph (a) [DUI offense] for the third or subsequent time." (Emphasis added.) 625 ILCS 5/11-501(d)(1) (West 1992).

On April 26, 1993, the State charged defendant Kermin A. Tinkham in the circuit court of Edgar County with the offense of aggravated DUI occurring on April 25, 1993. The first of the two factors aggravating the offense were alleged in words as follows:

"The defendant having previously committed the same offense in Edgar County on April 25, 1986, and having been convicted of a second offense in Edgar County on April 17, 1987." (Emphasis added.)

Defendant moved to dismiss on the basis that the conduct alleged to have been committed on April 25, 1986, resulted in a supervisory orderwhich was not a conviction and thus failed to qualify as the first factor which would enhance the offense charged to aggravated DUI. The State concedes that such a supervisory order was entered. The motion to dismiss was denied.

A bench trial was held and, on August 2, 1993, the circuit court found defendant guilty of aggravated DUI and sentenced him to two years of probation with 180 days to be served in the Edgar County jail. Defendant has appealed making the sole contention that the alleged April 26, 1986, episode which resulted in a supervisory order for DUI was erroneously considered as a factor which enhanced the offense of DUI, which he admittedly committed, to the offense of aggravated DUI. We disagree with this contention and affirm.

The supervisory order resulting from defendant's conduct on April 25, 1986, was entered pursuant to section 5-6-1(c) of the Unified Code of Corrections (Unified Code) which, at all times pertinent, has stated that upon a "plea of guilty" to a criminal charge or upon a stipulation of the existence of facts supporting such a charge, the court, under certain circumstances, may place the person charged under an order of supervision. (Ill. Rev. Stat. 1985, ch. 38, par. 1005-6-1(c).) At all such times sections 5-6-3.1(d), (e), and (f) of the Unified Code have stated the following in regard to orders of supervision:

"(d) The court shall defer entering any judgment on the charges until the Conclusion of the supervision.

(e) At the Conclusion of the period of supervision, if the court determines that the defendant has successfully complied with all of the conditions of supervision, the court shall discharge the ...


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