Appeal from Circuit Court of Champaign County No. 97CF758 Honorable John G. Townsend, Judge Presiding.
The opinion of the court was delivered by: Justice Knecht
IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS
Defendant, Cynthia Exum, was charged with forgery in the circuit court of Champaign County. 720 ILCS 5/17-3(a)(2) (West 1996). At the time of her arraignment she was ordered to pay $300 for the services of a public defender. Pursuant to a negotiated plea agreement, defendant pleaded guilty to forgery and the trial court sentenced her to a three- year term in prison. She was also ordered to make restitution in the amount of $305. She filed a motion to reduce her sentence, which was denied. Defendant appeals from the restitution order, contending it exceeded the amount of the forged check listed in the information charging her with the offense. She also appeals from the order requiring her to pay attorney fees on the grounds the trial court failed to conduct a hearing pursuant to section 113-3.1 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/113-3.1 (West 1996)) prior to issuing the order and that the fees were ordered before the services were rendered. We agree with defendant's arguments.
At an arraignment on June 30, 1997, defendant was charged by information with one count of forgery. She filled out an affidavit of assets and liabilities and counsel was appointed to represent her. A payment order for court-appointed counsel in the amount of $300 was also entered that day without the hearing required under section 133-3.1 of the Code.
Later, the State and defendant negotiated an agreement under which the State would dismiss another, unrelated, charge and request a sentence of no more than three years' imprisonment and defendant would plead guilty to the forgery charge. The plea was entered on November 26, 1997.
The factual basis for the plea was that on May 8, 1997, Alice Elkins gave defendant a ride to Mulligan's Ale House and later noticed three checks missing from her checkbook. On May 13, Elkins was notified by her bank check Nos. 198, 199, and 200 had been delivered to Mulligan's on May 8. Each of the checks was made payable to defendant. Elkins signed an affidavit of forgery indicating she did not authorize anyone to sign her name to the checks and picked defendant out of a photo lineup as the person to whom she had given a ride to Mulligan's. Detectives from the Champaign police department interviewed an employee of Mulligan's who identified defendant from a photo lineup as the person who had presented the checks. The checks were for $100, $40, and $65.
On December 31, defendant was sentenced to three years' imprisonment with credit for time served of 72 days and was ordered to pay restitution in the amount of $305 to Mulligan's Ale House. On January 16, 1998, defendant filed a motion to reconsider sentence. The motion alleged the court failed to consider relevant factors in mitigation. The trial court denied the motion at a hearing on February 5. Timely notice of appeal was filed on February 13.
Defendant argues the trial court erred by ordering her to pay restitution in excess of the amount charged in the information. The information charged only one count of forgery for a check in the amount of $100.
Generally, a defendant who pleads guilty in exchange for a cap on the length of her sentence may not challenge a sentence imposed within that cap without first moving to withdraw her guilty plea. If the defendant does not file a motion to withdraw her guilty plea, neither the trial court nor the appeals court should consider her challenge to the sentence. People v. Linder, 186 Ill. 2d 67, 74, 708 N.E.2d 1169, 1172-73 (1999). However, where a sentencing court exceeds its statutory authority, that part of a defendant's appeal of her sentence exceeding the trial court's authority is not barred from consideration due to the defendant's failure to file a motion to withdraw her guilty plea. See People v. Williams, 179 Ill. 2d 331, 333, 688 N.E.2d 1153, 1154 (1997); People v. McCaskill, 298 Ill. App. 3d 260, 264-65, 698 N.E.2d 690, 693 (1998).
In this case, defendant did not file a motion to withdraw her guilty plea in the trial court but simply filed a motion to reconsider her sentence. However, her claim on appeal is that the trial court exceeded its authority under section 5-5-6 of the Unified Code of Corrections (730 ILCS 5/5-5-6 (West 1996)) when it ordered restitution in excess of the amount charged in the information, and this allegation may be considered without defendant having filed a motion to withdraw her guilty plea.
Section 5-5-6 provides in relevant part:
"In all convictions for offenses in violation of the Criminal Code of 1961 in which the person received any injury to their person or damage to their real or personal property as a result of the criminal act of the defendant, the court shall order restitution as provided in this Section. ***
(a) At the sentencing hearing, the court shall determine whether *** the defendant should be required to make restitution in cash, for out-of-pocket expenses, damages, losses, or injuries found to have been proximately caused by the ...