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June 25, 1996


Appeal from the Circuit Court of Cook County. No. 93 CR 28807. The Honorable Themis Karnezis, Judge Presiding.

Released for Publication August 13, 1996.

The Honorable Justice DiVITO delivered the opinion of the court: Scariano and Burke, JJ., concur.

The opinion of the court was delivered by: Divito

JUSTICE DiVITO delivered the opinion of the court:

Following a bench trial, defendant Derrick Reed was convicted of reckless homicide and aggravated driving while under the influence of alcohol. He was sentenced to seven years' imprisonment for the reckless homicide offense, with a concurrent four-year term for the other offense. His sole contention on appeal is that his seven-year sentence for reckless homicide was excessive. For the reasons that follow, we hold that defendant waived any sentence-related issues and we therefore affirm the judgment of the circuit court.

A full recitation of the facts is unnecessary. We point out that defendant, who had a blood-alcohol level of .224, drove through a red light at the intersection of State and 43rd Streets, in Chicago, at a speed estimated by two witnesses to be between 70 and 80 miles per hour. He collided with a car that was travelling through the intersection with such force that it flipped several times, landing 50 to 75 feet away. A woman in the front seat of that car was killed when she and a baby that she had been holding on her lap were thrown from it. The baby was critically injured. The litany of other injuries caused by defendant to passengers in both cars included fractures, cuts, a ruptured bladder, a bladder perforation, and permanent physical disabilities. Defendant himself was in a coma for several days and suffered an aortic tear and permanent paralysis from the waist down.

Defendant had received 18 months felony probation in 1991 for possession of a controlled substance.

In this appeal, defendant contends that his sentence was excessive because the circuit court abused its discretion by imposing a sentence reflective solely of retribution and in relying too heavily on the need for deterrence, without taking into account that defendant's paraplegic condition rendered a recurrence unlikely. He also contends that the circuit court gave improper weight to some aggravating considerations and insufficient regard to mitigating circumstances, such as defendant's rehabilitation potential, his present physical condition, and his treatment needs.

In addition to responding that the circuit court properly exercised its discretion, the State contends that defendant has waived review of his sentence by his failure to file a post-sentencing motion as required by section 5-8-1(c) of the Unified Code of Corrections. 730 ILCS 5/5-8-1(c) (West 1994).

Prior to August 1993, a defendant's failure to object to an alleged error in sentencing did not result in waiver for appeal purposes. 730 ILCS 5/5-8-1(c) (West 1992); People v. Lewis, 158 Ill. 2d 386, 634 N.E.2d 717, 199 Ill. Dec. 664 (1994) (because framed in permissive rather than mandatory terms, section 5-8-1(c) provided no prerequisite for appeals). Effective August 11, 1993, however, section 5-8-1(c) was amended to read as follows:

"(c) A motion to reduce a sentence may be made, or the court may reduce a sentence without motion, within 30 days after the sentence is imposed. A defendant's challenge to the correctness of a sentence or to any aspect of the sentencing hearing shall be made by a written motion filed within 30 days following the imposition of sentence. " (Emphasis added to portion added by Pub. Act 88-311, eff. August 11, 1993.) 730 ILCS 5/5-8-1(c) (West 1994).

The sentencing in this case occurred after the effective date of the amendment.

Although one opinion of this court has held that the amendment to section 5-8-1(c) "merely added a procedural requirement that any such motion [to reduce sentence] must be filed in writing within 30 days" ( People v. Cook, 279 Ill. App. 3d 718, 726, 216 Ill. Dec. 239, 665 N.E.2d 299 (1995), we agree with the other panels of this court that have held that the amended statute creates a precondition for a defendant's appeal of sentencing issues ( People v. Moncrief, 276 Ill. App. 3d 533, 659 N.E.2d 106, 213 Ill. Dec. 476 (2d Dist. 1995); People v. McCleary, 278 Ill. App. 3d 498, 663 N.E.2d 22, 215 Ill. Dec. 272 (1st Dist. 1996); People v. O'Neal, 281 Ill. App. 3d 602, 217 Ill. Dec. 427, 667 N.E.2d 516, (1st Dist. 1996)). We believe that such a motion should be the functional equivalent of the post-trial motion necessary to preserve issues for appeal. See People v. Enoch, 122 Ill. 2d 176, 522 N.E.2d 1124, 119 Ill. Dec. 265 (1988).

The motion required by section 5-8-1(c) is consistent with the well-established requirement that a contemporaneous objection is necessary to preserve a proper record concerning alleged error. See People v. Williams, 149 Ill. 2d 467, 493, 599 N.E.2d 913, 174 Ill. Dec. 829 (1992) (holding that any claimed deficiency or inaccuracy in a presentence report must be brought to the attention of the sentencing court or will be considered waived). Such a motion is also consistent with the requirement that a written motion is a necessary precondition to the preservation of an issue on appeal. Enoch, 122 Ill. 2d at 186-87; see also People v. Wallace, 143 Ill. 2d 59, 60-61, 570 N.E.2d 334, 155 Ill. Dec. 821 (1991) (holding that a ...

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