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04/15/96 PEOPLE STATE ILLINOIS v. JOSE SANTIAGO

April 15, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JOSE SANTIAGO, DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE DANIEL J. KELLEY, JUDGE PRESIDING.

The Honorable Justice Wolfson delivered the opinion of the court: Campbell, P.j. and Braden, J., concur.

The opinion of the court was delivered by: Wolfson

JUSTICE WOLFSON delivered the opinion of the court:

Something puzzling, unexplained, and, thankfully, rare happened in this otherwise mundane armed robbery case: the information named the wrong victim and no one in the trial court seemed to have noticed.

Defendant Jose Santiago (Santiago) seeks reversal of his armed robbery conviction. He contends there was a fatal variance between the allegations in the charging instrument and the proof at trial. His contention is based on the undisputed fact that the information identified the wrong person as the victim of the offense charged. We affirm his conviction.

FACTS

Santiago was arrested on February 18, 1994, after Teodulo Rodriquez pointed Santiago out to a police officer as one of two men who had robbed him at gunpoint at 1658 N. Karlov in Chicago on February 12, 1994. The police report and original complaint on February 12, 1994. The police report and original complaint clearly state that the victim-complainant was Teodulo Rodriquez.

Information No. 94 CR 6222, dated February 28, 1994, however, charged Jose Santiago with committing the offense of armed robbery on February 12, 1994, in Cook County, Illinois, in that:

"He, by use of force and threatening the imminent use of force whilearmed with a dangerous weapon, to wit: a revolver handgun, took United States currency and wallet from the person of ALFREDO JIMENEZ, in violation of the Illinois Revised Statutes 1989 as amended, ***" (Emphasis added.)

Alfredo Jimenez was the manager of the Jimenez Meat Market where defendant sometimes worked. Although Jimenez was a State's witness, he was not the victim of the robbery, nor was he present when the robbery took place. He was called by the State to contradict the defendant's claim of being in the meat market at the time of the armed robbery. He knew nothing about the robbery.

On August 25, 1994, defendant, represented by counsel, proceeded to a bench trial. Inexplicably, the variance in the victim's name in the charging instrument was not raised at trial, nor was it brought to the attention of the court in a post-trial motion.

There is nothing in the record to suggest (nor does the State allege on appeal) that the information was amended prior to trial. We note, however, that the trial judge, when admonishing Santiago with regard to his jury waiver, made the following statement:

"All right. Mr. Santiago, I have a copy of the information which alleges that on or about February 12th, 1994, in Cook County, Illinois, Jose Santiago committed the offense of armed robbery in that he, by use of force and by threatening the imminent use of force, while armed with a dangerous ...


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