People v. Rosa

• Decision Date: 19 December 1935
• Docket Number: No. 23213.,23213.
• Citation: People v. Rosa, 362 Ill. 161, 199 N.E. 267 (Ill. 1935)
• Parties: PEOPLE v. DE ROSA.
• Court: Illinois Supreme Court

362 Ill. 161

199 N.E. 267

PEOPLE

v.DE ROSA.

No. 23213.

Supreme Court of Illinois.

Dec. 19, 1935.

Error to Criminal Court, Cook County; Donald S. McKinlay, Judge.

Phil De Rosa was committed to the state penitentiary on his plea of guilty on a charge of larceny, and he brings error.

Affirmed.John B. Boddie, of Chicago, for plaintiff in error.

Otto Kerner, Atty. Gen., Thomas J. Courtney, State's Atty., of Chicago, and A. B. Dennis, of Danville (Edward E. Wilson, Richard H. Devine, and John T. Gallagher, all of Chicago, of counsel), for the People.

STONE, Chief Justice.

Plaintiff in error was committed to the State Penitentiary on his plea of guilty in the criminal court of Cook county on a charge of larceny. This plea was entered on the 15th day of October, 1934. The property charged to have been stolen was an automobile of the value of $600. The court on that date imposed an indeterminate sentence of from one to ten years. On the 24th of October, 1934, the court on its own motion corrected the sentence by setting the sentence of October 15 aside and imposing a sentence of from one to twenty years, as required by statute (Smith-Hurd Ann.St. c. 38, § 388a). This writ of error was sued out to reverse the Judgment.

Plaintiff in error contends here that after vacating the sentence first pronounced against him the court should have allowed his motion for leave to withdraw the plea of guilty; that he did not persist in his plea of guilty after the court set aside the sentence first imposed, and that the court did not warn him of the effect of his plea before resentencing him. The cause is here on a common-law record only. That record shows that plaintiff in error was fully advised by the court of the effects of his plea of guilty and that he persisted therein, whereupon the court ordered the plea to be entered of record against him. This recital is a sufficient compliance with the statute (Smith-Hurd Ann.St. c. 38, § 732) to warrant sentence. People v. Harney, 276 Ill. 236, 114 N.E. 503. There is nothing in this record to show that the court did not fully discharge its duty in advising and warning the accused of the consequences of his plea, and in this condition of the record this court will presume that the trial court discharged its duty in that behalf. People v. Walker, 250 Ill. 427, 95 N.E. 475. It is incumbent upon plaintiff in error to point out from the record wherein the trial court failed to properly advise him of the effects of his plea if he would have the benefit of such failure. People v. Siracusa, 275 Ill. 457, 114 N.E. 133. This the plaintiff in error has not done.

Counsel for plaintiff in error contends that the court abused its discretion in not allowing him to withdraw his plea of guilty after the attempted sentence of October 15 was set aside by the court. There is no showing that he entered his plea of guilty through any misapprehension of fact or law or by misrepresentation by...