*1 this mo- withdraw may have Although plaintiffs so, and the motion not ever do hearing, did in fact they tion before from the never appealed 1990. plaintiffs on June was stricken peti- 2—1401 August section the motion. striking order plain- 2—1401 therefore the second petition section tion tiffs the trial filed at level. of a section denial appealed has not party timely petition. a second such filing relief may not seek petition
2—1401 67, 70; 3d Mogilles 136 Ill. ex rel. McGraw v. App. (People (1985), Industries, Werth 621; 3d Saporito (1974), v. Ill. Goldstick App. 3d Co. App. 16 Ill. Management Inc. v. Mid-America (1973), from the denial appeal no 690.) timely there has been Where petition will first an from the second invalid petition, appeal Island Lake (Village jurisdiction. appellate court vest 123; Mc v. Bank & Parkway Trust Co. App. 3d 621; Werth, 71-72; Goldstick, 22 Graw, App. 136 Ill. 3d at appeal. 16 Ill. therefore dismiss the We dismissed. Appeal BOWMAN, JJ., concur.
INGLIS ILLINOIS, Plaintiff-Appellee, THE PEOPLE OF STATE OF THE AUSTIN, Defendant-Appellant. DONALD District No. 2—89—0534 Second 30,1991. August Opinion July 25,1991. Rehearing filed denied — *2 DUNN, J., dissenting. Joseph
G. Hamill, Weller and Kathleen J. Appellate both of State De- Office, fender’s Elgin, appellant. of Foreman,
Fred L. Attorney, Waukegan (William State’s of L. Browers Moltz, and Martin P. both of Attorneys Appellate State’s Prosecutor’s Of- fice, counsel), People. for the
PRESIDING JUSTICE REINHARD delivered the opinion of the court:
Defendant, Austin, Donald was found a trial con ducted in the circuit court of Lake of two counts of County residential burglary (Ill. Rev. Stat. par. 3) and was sentenced to a 30-year term of imprisonment to run consecutively with a 30-year sentence previously imposed for a separate, unrelated offense.
Defendant raises two issues on appeal: (1) whether erred by refusing to submit instructions the offense of regarding 4); Rev. Stat. to residence excessive. his sentence was (2) and whether alia, counts of defendant, inter with two The indictment July that on or about alleged count residential One dwelling into the authority and without “knowingly Zion, Street, 29th at 3310 West located place Mary Sparks, Jane therein a theft.” to commit Illinois, the intent Lake with County, en- alleged it identical except other count was unlawful restraint. committing an the home the intent tered 1986, after July that on trial, testified At “it a she took shower because a cleaning up following party, dinner home door at rear sliding glass night.” was hot very room, very it a “very as was to allow air flow open was living a room shower, she fell taking asleep After a muggy” night. a.m., and sensed At 2:30 she awoke couch at 1:30 a.m. about about man, was not realized that there was a who presence near her. member, next to her. The man’s knees were standing a family three feet from her her, eyes. and his face was about inches from hand gloves. right His wearing yellow “Playtex-type” man was mouth, moving toward the switch on near her and his left hand was which was on at that time. nearby lamp looking the man’s face for about five seconds. While
Sparks saw *3 him, hand and screamed to her glove right at she the off his pulled fled, exiting man in the house. The intruder then husband that a the intruder never the door. testified patio Sparks her, home, and did not touched did not take break anything in the home. She identified defendant as the intruder. anything neighbor that a observed a testimony Sparks Other revealed the car’s li- suspicious neighborhood, car in the wrote down parked number, car, in, get cense and later saw a man run to the plate min- at the home away. police drive When arrived later, plate them the license number neighbor gave utes car, found defendant registered police which was defendant. miles from the shortly inside the car thereafter about two home. in his In any
Defendant did not or offer behalf. testify argued in final his counsel opening argument his statement and later that defendant was misidentified. however, two conference, defendant submitted
At the instructions to a trespass of criminal concerning instructions the offense proposed A 38, a Class misde 1985, 4), ch. (Ill. par. residence Rev. Stat. 19— instruc- the offense. The second meanor. The first instruction defined tion stated that to sustain charge of criminal trespass to resi- dence, the State would prove have to defendant’s guilt beyond a reasonable doubt. The trial court give refused to the instructions be- cause it felt the evidence showed that defendant was either not guilty crime or any residential burglary.
Initially, defendant contends that the trial court erred by refusing to submit to the his proffered instructions on the offense of crim- inal trespass residence.
An accused cannot be convicted of an offense that was not
charged unless the offense of which he is found
is a
lesser-in
cluded offense of the one charged. (People v. Schmidt (1988), 126 Ill.
179, 183,
2d
However, although criminal trespass to residence is a lesser- included offense of residential burglary, trial court is not necessar ily required to give tendered instructions. In People v. Moore (1990), 206 Ill. App. defendants, who were convicted of residential burglary, argued that erred by refusing instruct the lesser-included offense of Moore, In court, residence. the appellate in af firming court, the circuit stated the appropriate rule as follows:
“Although defendant is entitled to instructions on lesser in cluded offenses (People v. Cramer (1981), 85 Ill. 2d *4 189), N.E.2d those instructions will if permitted be only trier of fact can rationally determine that the evidence is insuf ficient to support a finding greater offense, of not of the guilty but sufficient for finding a of the guilty lesser included of-
917
70, 419 N.E.2d
App.
(1981),
v. Balls
(People
fense.
shows that
the evidence
true that where
It is
571.)
equally
guilty
or not
higher
guilty
defendants are either
offense is
the lesser included
offense, an instruction on
of any
Thompson (1976),
v.
People
refused.
properly
unnecessary
Moore,
206 Ill.
N.E.2d 445.”
774,
Similarly, supreme rationally only in cases where required instruction not guilty offense and of the lesser find the defendant 70, 81, 483 Ill. 2d (1985), greater People offense.” Perez N.E.2d 250. residence taken from the case, although nothing was
In this not Sparks, did not touch Jane Mary and defendant to residence of criminal convicted defendant intent to prove of residential To acquitted restraint, presented commit theft or unlawful the State a through residence Sparks’ that at 2:30 a.m. defendant entered the hot, wearing gloves muggy July rear Defendant was rubber door. mouth as Sparks’ Defendant also had one hand near night. off the Defendant offered no evi light. his other hand reached turn from the evi only arising dence to refute this defense testimony. was misidentification. arguments dence and from defense counsel’s guilty. either of the offenses as or not Defendant was on the Thus, refused defendant’s instructions properly lesser-included offense. imposed next raises is that the sentence issue defendant defend background Essentially, in of his and character. light
excessive of 30 years’ ant that he an extended-term sentence contends received sentence because previous to run with a imprisonment consecutively propensity with a criminal person the State defendant as portrayed that if this pro sex-related Defendant contends to commit offenses. effect, age, at his the basis for the sentence which pensity was under sentence, proceeded to a life the State should have amounted Stat. Dangerous Persons Act Rev. Sexually contention is meritless. 12). This pars. 105—1.01 an abuse of altered on review absent sentence will be 268, 412 82 Ill. 2d trial court. v. Cox (People discretion when a defendant may imposed An extended term be in Illi convicted having previously after been any felony convicted of has oc such conviction felony or class nois of the same charges conviction and after the years previous curred within 10 *5 are brought and and arise different of separately tried out of series acts. (Ill. 38, par. Stat. 5—3.2(b)(1).) Rev. trial court if, may impose regard a consecutive sentence to the having nature of the and circumstances offense and character of the history defendant, of it is the that such a term opinion required to protect the from criminal public conduct the defendant. Ill. Rev. Stat. 8—4(b). case, In eligible this defendant was for an extended-term sen tence because he was convicted on previously January ag of gravated assault, criminal sexual residential re burglary unlawful no straint. We find abuse of discretion in the imposing extended term. Further, the trial court found that a consecutive sentence was re quired to the protect public from defendant. cannot that the say We trial court its in requiring abused discretion that the sentence run light in of consecutively prior defendant’s criminal history. Defendant was sentenced to to 20 in the Ohio of years Department Corrections conviction; for a to one rape year’s discharge sentenced conditional for conduct from disorderly resulting using defendant to stepladder look into the second-story teenage girl; bedroom window of a and re to cently sentenced terms of 30 for years aggravated criminal sexual assault, 15 for years burglary residential and 3 unlawful re years straint. of record, Based on careful the we cannot review conclude that the trial court abused its discretion.
The of judgment the County circuit court Lake is affirmed. Affirmed.
UNVERZAGT, J., concurs. DUNN,
JUSTICE dissenting: I I dissent believe court respectfully because the trial committed by refusing reversible error to instruct the about the lesser-in- jury eluded offense of criminal trespass residence. While the majority opinion applicable sets forth the correctly principles law with re- issue, gard to this I the disagree application of those majority’s principles.
As majority recognizes, dispositive determin- question ing whether defendant was entitled have the instructed on the jury a jury lesser-included offense whether could rationally acquit- have ted the defendant of offense while him of convicting lesser. It from is obvious that was evidence defendant The on to majority goes residence. conclude that element the sole additional the evidence that it is so clear from felony, present commit a intent burglary, of residential I otherwise. have concluded conceivably no rational agree. cannot in the indictment burglary residential counts two of theft and unlawful to commit the offenses The evidence estab- he residence. Sparks’
restraint when entered intended to commit theft when lishes as to whether defendant doubt awoke, because, he the residence when entered than standing rummaging through over her rather defendant was Furthermore, take did not house for items to take. looking concluded house. anything theft from the intend to commit a defendant did he home. *6 in- the evidence more indicates Although strongly restraint when he entered tended commit offense unlawful residence, the con- a rational could have concluded to Sparks jury awoke, trary. testified that when she defendant his mouth. standing right by her with hand a inches her if have from this jury testimony could concluded defendant had her or her he have done so restrain harm be- Instead, nothing fore she for for a few help. screamed defendant did ran after touching Sparks seconds and then out the back door without off his hand. pulled glove she screamed in entitled to have a jury reason defendant sometimes “pro structed on a Iesser-included offense is that an instruction which, believing vides an important option third something defendant but uncertain whether proved, might acquit otherwise rather than has been convict (People Bryant offense.” Ill. 2d “important op I this third believe it tion” have been in this case presented should because lacked intent concluded that defendant felonious he of crimi home and was therefore nal to residence rather than residential I therefore the cause a new trial. dissent and would remand respectfully