Appeal from the Circuit Court of Kane County. No. 98-CF-517. Honorable James C. Hallock, Judge, Presiding.
The trial court's denial of defendant's motion to vacate an order requiring defendant to make monthly restitution payments after the expiration of the five-year period provided under section 5-5-6 of the Unified Code of Corrections for such orders was affirmed, since the restitution order remained in effect, even though the five-year limitation had expired, and the balance of the restitution order might still be collectable.
For Appellant: Thomas A. Lilien, Josette Skelnik, State Appellate Defender's Office, Elgin.
For The People: Joseph H. McMahon, State's Attorney, St. Charles (Lawrence M. Bauer, Joan M. Kripke, State's Attorneys Appellate Prosecutor's Office, Of Counsel).
JUSTICE McLAREN delivered the judgment of the court, with opinion. Justices Jorgensen and Birkett concurred in the judgment and opinion.
[¶1] Defendant, David Bruun, appeals from an order of the circuit court of Kane County denying his pro se motion to vacate an order entered on June 14, 2006, that required him to make monthly restitution payments pursuant to section 5-5-6 of the Unified Code of Corrections (Code) (730 ILCS 5/5-5-6 (West 2006)). Section 5-5-6(f) provides that, when restitution is paid in installments, the trial court shall fix a period of time no longer than five years for payment of restitution. 730 ILCS 5/5-5-6(f) (West 2006). Defendant maintains that, upon the expiration of the five-year period, the restitution order became void. We affirm.
[¶2] Following a bench trial, defendant was found guilty of five counts each of theft (720 ILCS 5/16-1 (West 1996)) and financial exploitation of an elderly or disabled person (financial exploitation) (720 ILCS 5/16-1.3 (West 1996)). The trial court entered judgment of conviction on a single count each of theft and financial exploitation. Defendant had been a cotrustee of a trust established for the benefit of David Rasmussen from the proceeds of the settlement of a medical malpractice claim. Rasmussen had suffered two strokes following hip-replacement surgery and was paralyzed on his right side. The convictions stemmed from evidence that defendant: (1) had made unauthorized loans of funds from the trust to a fledgling business that employed defendant as its chief executive officer; and (2) had withdrawn funds from the trust and used the funds for gambling and other personal purposes. The trial court sentenced defendant to two concurrent eight-year prison terms and ordered him to pay $430,812 in restitution.
[¶3] Defendant appealed. A divided panel of this court concluded that the evidence was sufficient to sustain the theft conviction and that the trial court did not abuse its discretion by sentencing defendant to prison, rather than to probation. People v. Bruun, No. 2-02-0118, 343 Ill.App.3d 1303 (2003) (unpublished order under Supreme Court Rule 23) ( Bruun I ). However, the majority agreed with defendant, and the State conceded, that " one-act, one-crime" principles required that one of defendant's convictions be vacated. The State elected to retain the theft conviction, and we vacated the financial-exploitation conviction. Furthermore, the parties agreed that defendant was entitled to a new restitution hearing to determine the correct amount of restitution and to set a schedule for payments. We vacated the restitution order and remanded for further proceedings.
[¶4] On remand, on June 14, 2006, Judge Philip L. DiMarzio entered an order setting restitution at $444,875 and finding that defendant was entitled to credits totaling $190,468.62. The June 14, 2006, restitution order further provided, in pertinent part, as follows:
" [Defendant] is to make monthly payments of $450.00 starting 7/15/06 based on 15% of his net current salary. This is for the statutory period of 5 years until 6/14/11. The amount is set for review on 6/14/07 ***. Either party may notice the case up if [defendant's] circumstances change. ***
At the end of the 5 year period a new restitution order shall be entered providing for the remainder of the ...