{
  "id": 2701569,
  "name": "The People of the State of Illinois, Plaintiff-Appellee, v. William Custer, Defendant-Appellant",
  "name_abbreviation": "People v. Custer",
  "decision_date": "1975-01-21",
  "docket_number": "No. 73-420",
  "first_page": "24",
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      "cite": "296 N.E.2d 753",
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      "cite": "11 Ill.App. 3d 249",
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  "last_updated": "2023-07-14T15:50:56.200740+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [],
    "parties": [
      "The People of the State of Illinois, Plaintiff-Appellee, v. William Custer, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE EBERSPACHER\ndelivered the opinion of the court:\nThis is an appeal by the defendant, William Custer, from separate orders entered by the circuit court of St. Clair County denying the defendant\u2019s motion for a new trial and denying his request for probation.\nIn 1971, a jury returned a verdict of guilty against the defendant for the offense of forgery, and a judgment of conviction was entered thereon. After the trial the defendant filed a motion for a new trial on the ground of newly discovered evidence. The trial court denied this motion and specifically ruled on and denied a motion for probation, and, after hearing evidence in aggravation and mitigation, sentenced the defendant to a term of imprisonment of not less than 2 or more than 14 years. On appeal, this court affirmed both the judgment of conviction and the denial of the defendant\u2019s motion for a new trial. (People v. Custer, 11 Ill.App. 3d 249, 296 N.E.2d 753.) Upon the denial of the defendant\u2019s petition for a rehearing, this court filed a supplemental opinion remanding the case for resentencing under the Unified Code of Corrections. (People v. Custer, 11 Ill.App.3d 258, 296 N.E.2d 759.) Since the evidence presented at the defendant\u2019s trial is well summarized in those opinions, that evidence will not be repeated here except where necessary for discussion of the issues raised in the instant appeal.\nThe defendant advances two contentions in this appeal: first, that the trial court \u201cerred in not granting a new trial or actually in not dismissing this case because of Newly Discovered Evidence\u201d; and secondly, that the trial comt\u2019s denial of probation was arbitrarily exercised, manifesting an abuse of discretion, describing \u201cDenial of Probation\u201d as an issue presented for review.\nOur mandate issued June 15, 1973, remanded the cause \u201cto the Circuit Court of St. Clair County for resentencing.\u201d On June 21, 1973, the defendant filed his motion entitled \u201cMotion to dismiss case or in the alternative motion for new trial on the ground of newly discovered evidence\u201d which was based on the alleged discovery of certain checks, ledger sheets, and other documents in a garage behind the building which previously housed the defendant\u2019s car dealership.\nOn June 22, 1973, the trial court, in the presence of defendant, his counsel and an assistant State\u2019s attorney, entered an order which recited:\n\u201c* * * whereupon, upon the Mandate of the Appellate Court the Court finds that a presentence investigation is required, and this case is referred to the Adult Probation Officer for investigation and report to this Court on the 30th day of July, 1973 at the hour of nine o\u2019clock a.m. It further appearing to the Court that defendant has filed a post-trial motion, etc., and copy furnished to the State\u2019s Attorney, this matter is also set for hearing on July 30, 1973.\u201d\nOn June 25, 1973 the trial court entered the following order:\n\u201cThe resentencing hearing, together with hearing on Motion for New Trial, set for August 13, 1973 @ 9:30 A.M., Court Room No. 2.\u201d\nOn June 27, 1973, a presentencing report, in which the probation officer refrained from making a recommendation, was made and subsequently presented to the court. On August 13, 1973, evidence was heard on the motion for a new trial, and the matter \u201ctaken under advisement pending submission of briefs by both parties.\u201d\nOn November 14, 1973, the court denied the motion for new trial and set the matter for disposition on December 3, 1973. On December 10, 1973, the court denied \u201cthe motion for probation\u201d and sentenced the defendant to not less than 2 nor more than 10 years. No motion for probation appears in the record made after our mandate was issued, although an oral request for probation had been made when defendant was first sentenced in 1971; that request was considered by the court at that time and denied, before the 2- to 14-year sentence had been imposed. At the hearing on the motion for new trial, defendant\u2019s counsel acknowledged that the request for probation had been adjudicated, saying: \u201cAs I understand there was a probation hearing one time before, and there was testimony here. I think the court heard those witnesses at that time, and denied probation, so we wouldn\u2019t go into that again, I presume.\u201d Defendant has perfected an appeal from the order of November 14 denying the motion for a new trial and the order of December 10, 1973, denying the application for probation and sentencing defendant.\nOur mandate (taken with our prior opinions) conferred jurisdiction on the trial court for one purpose only, that of resentencing in conformity with the Unified Code of Corrections. The trial court by our mandate would not be barred from hearing a petition filed under section 72 of the Civil Practice Act (Ill. Rev. Stat., ch. 110, par. 72); however, defendant\u2019s petition was not and by its content could not be considered as a section 72 petition. Counsel has, since this cause was argued in this court, redrafted his original motion to make it appear to be a section 72 petition and filed such petition in the trial court and forwarded a copy to this court; a highly irregular procedure.\nIn Schuman v. Department of Revenue, 38 Ill.2d 571, 574, 232 N.E.2d 732, 734, our supreme court said:\n\u201cHowever, it is well established that a motion under section 72 does not lie on the basis of newly discovered evidence. [Citations to criminal cases.]\u201d\nThe trial court had no jurisdiction to hear- the motion for new trial and had no motion for probation before it which had not been adjudicated. Defendant does not here argue that the sentence of 2 to 10 years last imposed pursuant to our mandate is excessive. We therefore dismiss the appeal.\nAppeal dismissed.\nG. MORAN and CREBS, JJ., concur.",
        "type": "majority",
        "author": "Mr. JUSTICE EBERSPACHER"
      }
    ],
    "attorneys": [
      "Ross Armbruster, of Alton, for appellant.",
      "Robert H. Rice, State\u2019s Attorney, of Belleville, for the People."
    ],
    "corrections": "",
    "head_matter": "The People of the State of Illinois, Plaintiff-Appellee, v. William Custer, Defendant-Appellant.\n(No. 73-420;\nFifth District\nJanuary 21, 1975.\nRehearing denied February 21, 1975.\nRoss Armbruster, of Alton, for appellant.\nRobert H. Rice, State\u2019s Attorney, of Belleville, for the People."
  },
  "file_name": "0024-01",
  "first_page_order": 48,
  "last_page_order": 51
}