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People v. Roe

Court of Appeals of Illinois, Fifth District

January 6, 2015

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
BRIAN ROE, Defendant-Appellant

Page 96

Appeal from the Circuit Court of Williamson County. No. 13-CF-175. Honorable John Speroni, Judge, presiding.

Affirmed.

SYLLABUS

Although the charging instrument in defendant's case made reference to defendant's failure to register as a sex offender within three days of his conviction rather than within three days of his discharge, parole, or release from incarceration, defendant's due process rights were not denied, and even if defendant's indictment was found not to have specifically apprised defendant of the charge against him, that is, failing to register as a sex offender within three days of his release from incarceration, the variance did not warrant reversing defendant's conviction, since it was not material, misleading, or likely to expose defendant to the possibility of double jeopardy; therefore, his claim that his right to due process was violated bye his " conviction for a charge not made" was rejected and his conviction was affirmed.

For Appellant: Michael J. Pelletier, State Appellate Defender, Ellen J. Curry, Deputy Defender, Sara D. Parrish, Assistant Appellate Defender, Alexander G. Muntges, Assistant Appellate Defender, Mt. Vernon, IL.

For Appellee: Hon. Charles Garnati, State's Attorney, Williamson County Courthouse, Marion, IL; Patrick Delfino, Director, Stephen E. Norris, Deputy Director, Sharon Shanahan, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor, Mt. Vernon, IL.

JUSTICE WELCH delivered the judgment of the court, with opinion. Justices Stewart and Schwarm concurred in the judgment and opinion.

OPINION

WELCH, JUSTICE

Page 97

[¶1] The defendant, Brian Roe, was charged by amended information with failure to register as a sex offender in accordance with the Sex Offender Registration Act (the Act) (730 ILCS 150/1 et seq. (West 2012)). The defendant was found guilty at a stipulated bench trial. On appeal, the defendant argues that the State failed to present any evidence that he " failed to register within three days of his conviction as charged in the information," yet he was convicted for failing to register within three days of his release from the Department of Corrections. The defendant asserts that the " conviction for a charge not made" is a violation of his constitutional right to due process. For the following reasons, we affirm.

[¶2] The defendant was arrested on April 16, 2013. An information filed on April 17, 2013, asserted in count I that the defendant failed to report a change of address in violation of the Act, having previously been convicted of failure to report a change of address in Williamson County. Count II asserted that he failed to register as a sex offender with the county sheriff or city police department of his residence in violation of the Act. The first count was dismissed at a preliminary hearing on May 13, 2013. The court found probable cause existed on the second count, as there was evidence he was living in Carterville as early as March and the defendant did not report " anything[,] anywhere."

[¶3] The amended information, filed May 28, 2013, asserted that on April 16, 2013, the defendant " committed the offense of failure to register as a sex offender" where he " knowingly failed to register, in accordance with ...


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