People v. Lowther

• Decision Date: 07 July 1980
• Docket Number: No. 78-553,78-553
• Citation: People v. Lowther, 407 N.E.2d 1038, 85 Ill.App.3d 735, 41 Ill.Dec. 540 (Ill. App. 1980)
• Parties: , 41 Ill.Dec. 540 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Harry LOWTHER, Defendant-Appellant.
• Court: Appellate Court of Illinois

Page 1038

407 N.E.2d 1038

85 Ill.App.3d 735, 41 Ill.Dec. 540

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Harry LOWTHER, Defendant-Appellant.

No. 78-553.

Appellate Court of Illinois, Second District.

July 7, 1980.

Mary Robinson, Deputy State App. Defender, Elgin, Michael Mulder, Asst. State App. Defender, Chicago, for defendant-appellant.

J. Michael Fitzsimmons, State's Atty., Wheaton, Melbourne A. Noel, Jr., Donald B. Mackay, Mark L. Rotert, Asst. Attys. Gen., Chicago, for plaintiff-appellee.

VAN DEUSEN, Justice:

On December 18, 1975, the defendant was charged in a five-count indictment with the offenses of forgery, attempt theft and theft. After a jury trial, he was convicted of forgery (Ill.Rev.Stat.1975, ch. 38, par. 17-3) and two counts of attempt theft (Ill.Rev.Stat.1975, ch. 38, par. 8-4). The trial court entered judgments of conviction on the verdicts and sentenced the defendant on March 31, 1977, to a term of imprisonment from three and one-third to ten years for forgery, one to three years for attempt theft as regards count III and one to three years for attempt theft with respect to count V. These sentences were ordered to be served consecutively. On November 10, 1977, we denied the defendant's motion for a late notice of appeal. The defendant then filed a petition for leave to appeal in the Illinois Supreme Court on January 5, 1978. On March 30, 1978, our supreme court announced that the defendant's petition was allowed and further, in the exercise of the court's supervisory jurisdiction, ordered that the sentence imposed by the trial court be vacated and the cause remanded for resentencing "within the limit prescribed by law (Ill.Rev.Stat.1975, ch. 38, sec. 1105-8-4(c))." Upon remand, the trial court on July 19, 1978, resentenced the defendant under the applicable sentencing provisions of the 1975 Unified Code of Corrections. (Ill.Rev.Stat.1975, ch. 38, par. 1005-8-1 et seq.) The court sentenced the defendant to a term of imprisonment from three and one-third to ten years on the forgery conviction and imposed a sentence of imprisonment from one to three years on the conviction of attempt theft on count III, which sentence was made consecutive to the sentence for forgery. With respect to the other count of attempt theft, the court imposed a term of imprisonment from one to three years to be served concurrently with the other sentences. The defendant appeals. We affirm.

The evidence in this case shows that the forgery count of the indictment involved a $312 check, dated November 10, 1975, which was presented by the defendant on November 12, 1975, to the Downers Grove Currency Exchange for payment to Alpha-Omega Publishers. The defendant, who was sole owner of Alpha-Omega Publishers, received $312 in cash as payment for the check. The check was drawn on the Acorn Hill Farm account, which had its checking account at the Washington Bank and Trust Company of Naperville, and was purported to be endorsed by Frances Perkins. Although Frances Perkins had previously been a signatory for the Acorn Hill Farm account, she was not authorized to endorse checks on that account after January 1975. Ms. Perkins testified at trial that the signature on the check was not hers and that she had not authorized anyone, including the defendant, to sign the check.

The basis for the attempt theft offenses charged in counts III and V of the indictment is that the defendant attempted by deception to exert control over the funds of Heritage First National Bank of Lockport. Evidence adduced at trial indicates that the defendant opened an account at Heritage First National Bank in November of 1975 in the name of Alpha-Omega Publishers. At this time the defendant deposited a $5,000 check, dated November 10, 1975, and made payable to Alpha-Omega Publishers, which he endorsed in the name of Peter Phillips. This check was drawn on an account in the United Bank of Arizona. The record also reveals that the defendant had personally closed the Arizona account almost a year earlier, when he made out a check payable to Prescott College for the "balance of account." The check drawn on the United Bank of Arizona, which was deposited in Heritage First National Bank and credited to the account of Alpha-Omega Publishers, was later returned unpaid, because the Arizona Bank failed to honor it. The defendant then drew two checks on the account of Alpha-Omega Publishers at Heritage First National Bank which were made payable to James Stefanelli in the amounts of $1,500 and $750, dated November 17 and November 21, 1975, respectively. Both checks subsequently failed to clear the bank due to a lack of sufficient funds. The $1,500 check is the subject matter of count III, while the $750 check forms the basis for count V of the indictment.

On appeal, the defendant makes two contentions: (1) that he was entitled to be resentenced on July 19, 1978, under the sentencing provisions of the amendatory Unified Code of Corrections which became effective on February 1, 1978 (Ill.Rev.Stat.1978 Supp., ch. 38, par. 1005-8-1 et seq.) rather than under the law in effect on March 30, 1977, the date of his initial sentencing (Ill.Rev.Stat.1975, ch. 38, par. 1005-8-1 et seq.); and (2) that the trial court improperly imposed consecutive sentences on the forgery and attempt theft convictions.

In support of his first contention that he was entitled to be resentenced under the amendatory Unified Code of Corrections (Ill.Rev.Stat.1978 Supp., ch. 38, par. 1005-8-1 et seq.) rather than under the prior law (Ill.Rev.Stat.1975, ch. 38, par. 1005-8-1 et seq.), the defendant advances three arguments: (1) that the supreme court's mandate of March 30, 1978, directing the trial court to resentence the defendant "within the limit prescribed by law (Ill.Rev.Stat.1975, ch. 38, sec. 1105-8-4(c)," did not prohibit the trial court from resentencing him under the new Code; (2) that his constitutional rights to due process and equal protection of the law were denied when the trial court refused to allow him to elect to be resentenced under the provisions of the new Act; and (3) that section 8-2-4(b) of the amendatory Unified Code of Corrections (Ill.Rev.Stat.1978 Supp., ch. 38, par. 1008-2-4(b)) did not preclude him from electing to be resentenced under the new Code given the particular facts of this case.

Before addressing the merits of the defendant's first argument, we state at the outset that we are satisfied that the supreme court had intended to refer to section 1005-8-4(c) of the 1975 Unified Code of Corrections (Ill.Rev.Stat.1975, ch. 38, par. 1005-8-4(c)) when it mistakenly cited to nonexistent section 1105-8-4(c). The mistaken statutory reference apparently was the result of a typographical error. At the original sentencing hearing on March 30, 1977, the trial court sentenced the defendant to a prison term of three and one-third to ten years for forgery and from one to three years for each of two counts of attempt theft, the sentences to be served consecutively. This sentencing formula violated the statutory rules governing the aggregate maximum and minimum periods of consecutive sentences set forth in section 5-8-4(c) of the Unified Code of Corrections in effect at the time of the original sentencing. We believe the supreme court's mandate specifically directed the trial court to rectify this sentencing error. We also note that the defendant did not argue at the resentencing hearing and does not contend on appeal that the supreme court did not intend to refer to section 1005-8-4(c) when it cited to section 1105-8-4(c).

Having made this initial determination, we now consider the defendant's contention that the trial judge was not obliged to resentence him under the sentencing provisions of the 1975 Unified Code of Corrections. It is a basic rule of law in Illinois that the mandate of a reviewing court gives the trial court jurisdiction to do only that which the mandate requires. (Thomas v. Durchslag (1951), 410 Ill. 363, 365, 102 N.E.2d 114; People v. Dukett (1975), 33 Ill.App.3d 863, 865, 338 N.E.2d 487; People v. Street (1974), 19 Ill.App.3d 541, 311 N.E.2d 796; People v. Bain (1973), 10 Ill.App.3d 363, 364, 293 N.E.2d 758; Hamilton v. Faulkner (1968), 96 Ill.App.2d 415, 418, 238 N.E.2d 631.) "Where, as here, the directions of a reviewing court are specific, a positive duty devolves upon the court to which the cause is remanded to enter an order or decree in accordance with the directions contained in the mandate. Precise and unambiguous directions in a mandate must be obeyed. (Citations.)" (Thomas v. Durchslag, 410 Ill. at 365, 102 N.E.2d at 115.) We believe that the supreme court's order referred to a particular section and year of the Unified Code of Corrections for a specific reason. Absent a petition for rehearing to bring to the supreme court's attention matter which the defendant believed it had overlooked or misapprehended in entering its order (Ill.Rev.Stat.1977, ch. 110A, par. 367), the court's order became final and was binding on the trial court. In resentencing the defendant under the sentencing provisions of the 1975 statute, the trial court complied fully with the directions of the supreme court as it was compelled to do.

In seeking to be allowed to elect sentencing under the provisions of the amendatory Unified Code of Corrections which became effective on February 1, 1978 (Ill.Rev.Stat.1978 Supp., ch. 38, par. 1005-8-1 et seq.), the defendant asserts that section 8-2-4(b) of the new Code (Ill.Rev.Stat.1978 Supp., ch. 38, par. 1008-2-4(b)) is unconstitutional in that it denies him due process and equal protection of law as guaranteed by the fourteenth amendment to the United States Constitution. Section 8-2-4(b) of the new Act states:

"Prosecution for any violation of law occurring before the effective date of this amendatory Act of 1977 (February 1, 1978) is not affected or abated by this amendatory Act of 1977. If the...