{
  "id": 2467200,
  "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee, v. GENEVA POWELL, Respondent-Appellant",
  "name_abbreviation": "People v. Powell",
  "decision_date": "1990-06-29",
  "docket_number": "No. 4\u201489\u20140732",
  "first_page": "291",
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  "last_updated": "2023-07-14T15:10:12.040900+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [],
    "parties": [
      "THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee, v. GENEVA POWELL, Respondent-Appellant."
    ],
    "opinions": [
      {
        "text": "JUSTICE STEIGMANN\ndelivered the opinion of the court:\nDefendant, Geneva Powell, was charged with both State benefits fraud when more than $300 is obtained (Ill. Rev. Stat. 1989, ch. 38, par. 17\u20146) and theft of property having a value in excess of $300 (Ill. Rev. Stat. 1989, ch. 38, par. 16\u20141(a)(1)), was convicted at a bench trial of only State benefits fraud, yet was sentenced on both charges\u2014 five years in prison for each offense, to be served concurrently. In addition, the court imposed restitution on defendant in the amount of $5,710.\nOn appeal, defendant argues that her theft conviction must be vacated because (1) it is based upon the same physical acts which underlie the conviction of State benefits fraud, and (2) the trial court never entered a guilty verdict with regard to the theft charge. Defendant also argues that the order of restitution must be vacated because no evidence was presented to support the amount ordered.\nThe State has conceded (and we agree) that the offenses defendant was convicted of arose from the same physical acts. As a result, only one judgment of conviction may stand. (People v. King (1977), 66 Ill. 2d 551, 565, 363 N.E.2d 838, 844; People v. Heidorn (1983), 114 Ill. App. 3d 933, 939, 449 N.E.2d 568, 574.) Because the record shows no affirmative finding of guilt as to the theft charge, we reverse that part of defendant\u2019s sentence.\nDefendant additionally argues that the order of restitution imposed against her must be vacated because no evidence was presented to support the amount ordered.\nRegarding this issue, section 5\u20145\u20146(b) of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 1005\u2014 5\u20146(b)) states the following:\n\u201c(b) In fixing the amount of restitution to be paid in cash *** the court shall assess the actual out-of-pocket expenses, losses, damages, and injuries *** proximately caused by the same criminal conduct of the defendant ***.\u201d Ill. Rev. Stat. 1989, ch. 38, par. 1005-5-6(b).\nCiting People v. Sharp (1989), 185 Ill. App. 3d 340, 541 N.E.2d 689, a decision of the Fifth District Appellate Court, defendant argues that there was no evidence before the trial court at the sentencing hearing to support the imposition of the restitution order of $5,710. Instead, she claims that the evidence presented at trial showed the State suffered, at most, a loss of $1,928.\nSection 5\u20143\u20141 of the Code (Ill. Rev. Stat. 1989, ch. 38, par. 1005\u20143\u20141) states that a defendant shall not be sentenced for a felony before a written presentence investigation is presented to and considered by the court. In People v. Youngbey (1980), 82 Ill. 2d 556, 564, 413 N.E.2d 416, 421, the supreme court construed this provision to be mandatory.\nFurther, section 5\u20143\u20142(d)(3) of the Code, governing presentence reports, provides the following:\n\u201c(a) [T]he presentence report shall set forth:\n* * *\n(3) the effect the offense committed has had upon the victim or victims thereof, and any compensatory benefit that various sentencing alternatives would confer on such victim or victims ***.\u201d (Ill. Rev. Stat. 1989, ch. 38, par. 1005-3-2(a)(3).)\nWe construe section 5\u20143\u20142(a)(3) of the Code as requiring a discussion of restitution in the presentence report.\nAdditionally, section 5\u20144\u20141 of the Code (Ill. Rev. Stat. 1989, ch. 38, par. 1005\u20144\u20141) governs the proceedings at sentencing hearings. That section directs in pertinent part that at the sentencing hearing, \u201cthe court shall *** consider any presentence reports.\u201d (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 38, par. 1005\u20144\u20141(a)(2).) In accordance with section 5\u20143\u20141, a presentence report was prepared and filed in this case.\nThe record of the sentencing hearing conducted in this case reveals that both the court and counsel received the presentence report, which had been prepared in advance of that hearing by the Morgan County probation office. Under the heading \u201cVICTIM AND RESTITUTION,\u201d that report stated that Special Agent Ned Bandy of the Illinois Department of State Police Criminal Investigation Fraud and Forgery Division \u201cadvises the amount of restitution they are seeking in this case is $5710.\u201d This information was apparently the basis of the court\u2019s order of restitution.\nGiven the quoted statutory provisions regarding presentence reports and sentencing hearings, we hold that all information appearing in a presentence report may be relied upon by the sentencing judge to the extent the judge finds the information probative and reliable. In so holding, we are not requiring the judge to specify for the record those portions of the presentence report upon which the judge is relying.\nTo the extent that either the defendant or the State may believe that the presentence report contains inaccuracies, we hold that they have the burden to call any such inaccuracy to the court\u2019s attention at the start of the sentencing hearing. The better practice would be for the court, at the start of the sentencing hearing, to inquire of all counsel whether they have received the presentence report and whether they found any inaccuracies therein. However, irrespective of whether this practice is followed, we hold that the failure to object to any alleged inaccuracies in the presentence report waives that claim on appeal.\nThe case before us is a good example of the reason for this holding. During the sentencing hearing, defense counsel argued against the wisdom of imposing a restitution order of $5,710 upon a woman of defendant\u2019s limited means; defense counsel, however, never disputed the accuracy of the $5,710 figure itself.\nGiven the statutory scheme regarding the preparation and use of presentence reports, and given further that the reports are prepared by probation officers who are judicial employees, working under the direction and supervision of the local judiciary, we find that a tremendous waste of valuable and limited judicial resources would occur if sentencing judges were not permitted to consider all information contained in presentence reports to the extent the judge finds the information to be probative and reliable.\nIn the absence of some specific claim of inaccuracy in a presentence report, we hold that evidence in addition to information contained in the presentence report is not required. Thus, in the present case, no additional evidence regarding restitution, beyond the information on that subject contained in the presentence report, was required. Accordingly, we affirm the trial court\u2019s order of restitution.\nTo the extent that the Sharp case is inconsistent with the views expressed herein, we decline to follow it.\nFor the reasons stated, defendant\u2019s conviction and sentence for State benefits fraud is affirmed. Defendant\u2019s sentence for theft is reversed, and the cause is remanded with directions that a modified sentencing order be entered.\nAffirmed in part; reversed in part and remanded with directions.\nKNECHT, P.J, and LUND, J., concur.",
        "type": "majority",
        "author": "JUSTICE STEIGMANN"
      }
    ],
    "attorneys": [
      "Daniel D. Yuhas and Lawrence J. Essig, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.",
      "Charles Colburn, State\u2019s Attorney, of Jacksonville (Kenneth R. Boyle, Robert J. Biderman, and David E. Mannchen, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee, v. GENEVA POWELL, Respondent-Appellant.\nFourth District\nNo. 4\u201489\u20140732\nOpinion filed June 29, 1990.\nDaniel D. Yuhas and Lawrence J. Essig, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nCharles Colburn, State\u2019s Attorney, of Jacksonville (Kenneth R. Boyle, Robert J. Biderman, and David E. Mannchen, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People."
  },
  "file_name": "0291-01",
  "first_page_order": 319,
  "last_page_order": 323
}