                                              FIRST DIVISION
                                              November 3, 2008




No. 1-07-1763

THE PEOPLE OF THE STATE OF ILLINOIS,     )    Appeal from the
                                         )    Circuit Court of
     Plaintiff-Appellee,                 )    Cook County.
                                         )
           v.                            )
                                         )
WALTER ALLEN,                            )    Honorable
                                         )    Daniel P. Darcy,
     Defendant-Appellant.                )    Judge Presiding.



     JUSTICE WOLFSON delivered the opinion of the court:

     This case has taken a lengthy and tortuous path through the

trial court and now to this court.   It began in early 2001 when a

trial judge imposed a sentence that was not authorized by

statute.

     On November 3, 2000, defendant Walter Allen was convicted of

possession of a controlled substance with intent to deliver

within 1000 feet of a building used for religious worship.    Two

months later, he was sentenced to 24 months’ probation.    Less

than a year into his sentence, the State filed a petition for

violation of probation, alleging defendant’s probation should be

revoked in light of his arrest in April 2001 for first-degree

attempt murder, attempt armed robbery, and aggravated battery

with a firearm.   Defendant was convicted of the charges in 2005.

Following a probation revocation hearing on February 15, 2007,
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the circuit court revoked defendant’s probation and sentenced him

to 25 years’ imprisonment.    Shortly after defendant’s probation

was revoked, we reversed defendant’s 2005 convictions and sent

the case back for a new trial in People v. Allen, 376 Ill. App.

3d 511, 875 N.E.2d 1221 (2007).

     On appeal, defendant contends his probation violation

conviction should be reversed because we have reversed and

remanded the underlying conviction his probation violation was

based on.   In response to defendant’s appeal, the State filed a

separate motion with this court to void defendant’s probation

sentence for his 2000 possession conviction and remand for

resentencing on the original charge, contending the sentence was

void because defendant was Class X mandatory and statutorily

ineligible for probation.    We agree with the State.

FACTS

     On November 3, 2000, defendant was convicted of possession

of a controlled substance with intent to deliver within 1000 feet

of a building used for religious worship.    Following a sentencing

hearing on January 10, 2001, the circuit court sentenced

defendant to 24 months’ probation: “so the remand is he should be

discharged from County Jail.    He is placed on probation, open

mandate to T.A.S.C., under Section 91-1/2 [sic], which is taking

into consideration the Mental Health Code.”    The State responded


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that due to defendant’s background, he should be sentenced to a

mandatory Class X penitentiary sentence.      The circuit court did

not address the State’s response.       The presentence investigation

report indicates defendant had six prior felony convictions,

including three for residential burglary.

     In the spring of 2001, two attempt armed robberies were

committed at Four Star Dry Cleaners.      During the second attempt

robbery on April 17, 2001, Miye Goodson, an employee at the

cleaners, was shot in the back.     Defendant was initially arrested

in connection with the first attempt robbery of the cleaners

after he was identified in a photo array, but was tried only for

attempt armed robbery and attempt murder in relation to the April

17 incident.

     On August 10, 2001, the State filed a petition for violation

of probation and warrant, arguing defendant’s probation should be

revoked in light of his arrest.     Nothing much happened until

October 5, 2005, when a jury found defendant guilty of first-

degree attempt murder, attempt armed robbery, and aggravated

battery with a firearm.

     On February 15, 2007, the circuit court found defendant had

violated his probation by committing the April 17, 2001,

offenses.   The State’s evidence during the violation hearing

consisted of the transcript of the 2005 trial testimony, the


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trial exhibits, the trial stipulations, and the certificate of

defendant’s conviction.    Defendant stipulated to the admission of

all of the evidence.    On April 17, 2007, defendant was sentenced

to a 25-year prison term for the probation violation.    The court

denied defendant’s motion for a new hearing and reduction of

sentence.    Defendant appealed.

     On September 28, 2007, we reversed defendant’s first-degree

attempt murder, attempt armed robbery, and aggravated battery

convictions and remanded the cause for a new trial in People v.

Allen, 376 Ill. App. 3d 511, 875 N.E.2d 1221 (2007).    We stayed

defendant’s appeal of the probation violation pending resolution

of the State’s petition for leave to appeal to the Illinois

Supreme Court.    After the supreme court denied the State’s

petition, defendant filed a motion to lift stay and for summary

reversal of his conviction for probation violation.    He contended

that since the 2005 convictions were the sole basis for his

probation violation, the violation must be vacated.    In its

response, the State agreed the stay should be lifted, but argued

summary reversal was inappropriate in light of the remand for a

new trial.

     The State also filed a separate motion to vacate defendant’s

sentence on the 2000 possession conviction, contending, for the

first time in a reviewing court, the probation sentence was void.


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The State contended defendant was ineligible for probation

because he had several prior felony convictions and had been

convicted of possession of a controlled substance with intent to

deliver within 1000 feet of a building used for religious

worship.    See 720 ILCS 570/401(d) (West 2000); 720 ILCS 570/407

(West 2000).   The State contended the circuit court’s order of 24

months’ probation was not authorized by statute.   The State asked

us to vacate as void his sentence on his 2000 possession of a

controlled substance conviction, vacate the order revoking

defendant’s probation, and remand the cause for a new sentencing

hearing.

     On May 30, 2008, we: (1) denied defendant’s motion for

summary reversal; (2) denied without prejudice the State’s motion

to vacate as void defendant’s sentence on his 2000 conviction for

possession of a controlled substance; and (3) lifted the stay of

defendant’s appeal of his probation violation.   We now consider

the merits of defendant’s appeal and the State’s request that we

void the probation.

DECISION

I. The State’s Motion to Void Defendant’s Sentence

     A. Void Sentence

     The State contends we must hold defendant’s original

sentence of 24 months’ TASC probation for his 2000 conviction for


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possession of a controlled substance is void, relying on the same

arguments raised in its motion to vacate sentence filed with this

court.

     A sentence which is contrary to a statutory requirement is

void and may be attacked at any time, either directly or

collaterally.   See People v. Whitfield, 228 Ill. 2d 502, 510-11,

888 N.E.2d 1166 (2007), citing People v. Arna, 168 Ill. 2d 107,

113, 658 N.E.2d 107 (1995); People v. Wade, 116 Ill. 2d 1, 5-6,

883 N.E.2d 762 (1987).   See also People v. Simmons, 256 Ill. App.

3d 651, 652, 628 N.E.2d 759 (1993).

     Defendant contends, however, that the State lacks

jurisdiction to bring a motion to void the probation sentence in

this appeal, citing People v. Flowers, 208 Ill. 2d 291, 307, 802

N.E.2d 1174 (2004).   In Flowers, the defendant filed a 604(d)

motion to reject her guilty plea and reconsider her sentence,

contending in part that the portion of her sentence authorizing

the Department of Corrections to withhold a part of her prison

income to pay court costs was void because the Unified Code of

Corrections did not authorize the withholding.   The circuit court

denied the motion as untimely and defendant appealed.    The

appellate court reversed, holding that even though the

defendant’s 604(d) motion was untimely, the requirements of Rule

604(d) were not jurisdictional and could be excused when


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consideration of an unauthorized aspect of a sentence would

better serve the ends of justice.      Flowers, 208 Ill. 2d at 299.

       Reversing the appellate court, the supreme court held “[a]

void order does not cloak the appellate court with jurisdiction

to consider the merits of an appeal.”      Flowers, 208 Ill. 2d at

307.    Although the supreme court recognized a void order may be

attacked at any time, the court held “the issue of voidness must

be raised in the context of a proceeding that is properly pending

in the courts.”    Flowers, 208 Ill. 2d at 308.   “If a court lacks

jurisdiction, it cannot confer any relief, even from prior

judgments that are void.”    Flowers, 208 Ill. 2d at 308.   The only

matter properly before the appellate court was the circuit

court’s lack of jurisdiction over Flowers’ untimely Rule 604(d)

motion.    Flowers, 208 Ill. 2d at 307.   Because strict compliance

with Rule 604(d) was a condition precedent to an appeal on the

merits, the supreme court held the appellate court “had no

authority to intervene and vacate the portion of Flowers’

sentence authorizing 50% of her income to be withheld.”      Flowers,

208 Ill. 2d at 308-09.

       We find Flowers does not apply to the facts before us.   In

this case, defendant properly and timely appealed his probation

revocation conviction.    The probation order, by way of

defendant’s probation revocation conviction, is the subject of


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the appeal pending before us.    In light of the context of this

appeal, we find we have jurisdiction to consider the question of

whether the probation order is void.

     In Wade, the defendant pled guilty to robbery as part of a

negotiated plea agreement in which the parties stipulated that he

had no prior convictions.   Under the plea agreement, the

defendant was sentenced to 90 days in the Cook County Jail, with

time considered served, and 36 months’ probation.    Nine months

later, the circuit court was informed by a probation officer that

the defendant had previously been convicted of armed robbery and

rape, which made him ineligible for probation under the Unified

Code of Corrections.   The trial court held the order granting

probation was void on the grounds that the defendant was not

eligible at the time of sentencing, rejecting the defendant’s

argument that the court had lost jurisdiction 30 days after

entering the sentencing order.    The defendant was allowed to

withdraw his guilty plea.   Following a jury trial, he was found

guilty of robbery and sentenced to nine years’ imprisonment.     The

appellate court affirmed the defendant’s conviction.

     On appeal, the defendant contended the circuit court did not

have jurisdiction to vacate the sentence 11 months later.    The

State countered that because the circuit court lacked authority

to impose probation, the first sentencing order was void and


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could be set aside at any time.     The supreme court noted that it

had previously held a trial court “has an obligation to order the

criminal penalties mandated by the legislature.”        Wade, 116 Ill.

2d at 6, citing People ex rel. Carey v. Bentivenga, 83 Ill. 2d

537, 544, 416 N.E.2d 259 (1981).        “A trial court, upon

determining guilt, has no authority to assess a fine or impose a

sentence other than that provided by statute.”        Wade, 116 Ill. 2d

at 6.   The supreme court affirmed the defendant’s conviction and

sentence.

     In Simmons, the defendant was convicted of aggravated

discharge of a firearm and unlawful use of a firearm by a felon

on July 30, 1991.   He was placed on 30 months’ probation, over

the State’s objection that he was ineligible for probation

because he had prior class 2 felony convictions.        On December 20,

1991, the State filed a petition for violation of probation,

alleging the defendant committed the offenses of possession of a

stolen motor vehicle and burglary.        The circuit court found

defendant guilty of the violation and revoked his probation.        He

was sentenced to 15 years’ imprisonment for the probation

violation.   On appeal, defendant contended the original order

placing him on probation was void because he was ineligible for

probation; that the subsequent order revoking his probation was

also void; and, consequently, that his 15-year sentence for


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violating probation must be vacated as void.

     We noted a sentence is void for lack of inherent power where

the court orders a lesser sentence than is mandated by statute.

Simmons, 256 Ill. App. 3d at 652, citing Wade, 116 Ill. 2d at 6.

The circuit court placed the defendant on probation despite the

State’s objection that he was ineligible in light of his prior

felony convictions.    Relying on Wade, we held the order placing

him on probation was void because he was ineligible.     Simmons,

256 Ill. App. 3d at 653.   “The court lacked the inherent power to

order a sentence lesser than mandated by statute.”     Simmons, 256

Ill. App. 3d at 653.   Because the underlying order of probation

was void, we held the subsequent order revoking the defendant’s

probation and the 15-year sentence imposed upon revocation of the

probation were likewise void.   We vacated the order revoking

defendant’s probation and his 15-year sentence, and remanded for

resentencing on the defendant’s original convictions.     Simmons,

256 Ill. App. 3d at 653.

     In this case, defendant was convicted in 2000 for possession

of a controlled substance with intent to deliver within 1000 feet

of a building used for religious worship, a Class 1 felony.     See

720 ILCS 570/401(d), 407(b)(2) (West 2000).    On January 10, 2001,

the trial court sentenced defendant to 24 months’ TASC




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probation.1

     Section 40-10(a) of the Alcoholism and Other Drug Abuse and

Dependency Act (Act) (20 ILCS 301/40-10 (West 2000)) provides, in

relevant part, that:

            “If a court has reason to believe that an

            individual who is charged with or convicted

            with a crime suffers from alcoholism or other

            drug addiction and the court finds that he is

            eligible to make the election provided for

            under Section 40-5, the court shall advise

            the individual that he or she may be

            sentenced to probation and shall be subject

            to terms and conditions or probation under

            Section 5-6-3 of the Unified Code of

            Corrections.”   20 ILCS 301/40-10(a) (West

            2000).

     Section 40-5(2) of the Act provides an addict or alcoholic

who is charged with or convicted of a crime may elect treatment

unless:


     1
      Although the trial court indicated it was sentencing
defendant to TASC probation under section 91 1/2 of the Dangerous
Drug and Abuse Act (Ill. Rev. Stat. 1977, ch. 91 1/2, par. 120.1
et seq.), we note section 91 1/2 had already been replaced by
section 40-10 of the Alcoholism and Other Drug Abuse and
Dependency Act (20 ILCS 301/40-10 (West 2000)) at the time of
defendant’s sentencing hearing.

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            “(2) the crime is a violation of Section

            401(a), 401(b), 401(c) where the person

            electing treatment has been previously

            convicted of a non-probationable felony or

            the violation is non-probational, 401(d)

            where the violation is non-probational,

            401.1, 402(a), 405 or 407 of the Illinois

            Controlled Substances Act ***.”   20 ILCS

            301/40-5(2) (West 2000).

     Pursuant to section 40-5(2), defendant was statutorily

ineligible to be placed on probation under section 40-10 of the

Act because he was convicted of a crime under section 407 of the

Illinois Controlled Substance Act.      See 20 ILCS 301/40-5(2) (West

2000).   Because defendant was ineligible for probation and was

Class X eligible under section 5-5-3(c)(8) of the Unified Code of

Corrections (730 ILCS 5/5-5-3(c)(8) (West 2000)), the trial court

should have imposed a mandatory sentence of “not less than 6

years and not more than 30 years” imprisonment.      See 730 ILCS

5/5-8-1(a)(3) (West 2000).    Despite the State’s repeated

objections during the sentencing hearing that defendant was Class

X mandatory and ineligible for probation, the trial court

disregarded the sentencing scheme and imposed TASC probation.       “A

trial court, upon determining guilt, has no authority to assess a


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fine or impose a sentence other than that provided by statute.”

Wade, 116 Ill. 2d at 6.

     Defendant contends that under the unique circumstances

presented in this case, it would be unjust to apply the general

rule that a void sentence can be challenged at any time nearly

six years after the completion and expiration of his probationary

period.

     The State counters that personal service of a petition to

revoke probation tolls the probation period until the hearing and

disposition of the petition for violation, pursuant to section 5-

6-4(a) of the Code (730 ILCS 5/5-6-4(a) (West 2000)).   The State

filed a petition for violation of probation and warrant on August

10, 2001, about 8 months into defendant’s 2-year probation

period.

     Defendant was sentenced under section 40-10 of the

Alcoholism and Other Drug Abuse and Dependency Act, not the

Unified Code of Corrections.   Section 40-10 of the Act, however,

specifically provides “the court shall advise the individual that

he or she *** shall be subject to the terms and conditions of

probation under Section 5-6-3 of the Unified Code of

Corrections.”   See 20 ILCS 301/40-10 (West 2000).   One condition

of probation is that a person on probation “not violate any

criminal statute of any jurisdiction.”   730 ILCS 5/5-6-3(a)(1)


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(West 2000).   Section 5-6-4(a) of the Code provides how

revocation of probation should be initiated if a condition of

probation, which is spelled out in section 5-6-3, is violated.

See 730 ILCS 5/5-6-4(a) (West 2000).     We find defendant’s

probation period was tolled by the filing of the State’s

petition.   Moreover, we are bound by supreme court precedent,

which clearly provides “a sentence which is contrary to a

statutory requirement is void and can be corrected at any time.”

(Emphasis added.)     Whitfield, 228 Ill. 2d at 510.

     We also find the State’s request to vacate defendant’s

probation violation conviction as void and remand the cause for

resentencing on the 2000 possession charge does not constitute

double jeopardy, as defendant contends.     Although the double

jeopardy clauses of the United States and Illinois Constitutions

protect a defendant from multiple punishments for the same

offense (U.S. Const., amend. V; Ill. Const. 1970, art. I, § 10;

People v. Janovic, 365 Ill. App. 3d 547, 549, 850 N.E.2d 238

(2006)), our supreme court has clearly said probation is not a

“punishment” in the same sense as imprisonment is a punishment

(Whitfield, 228 Ill. 2d at 519-20).      “[A] defendant sentenced to

probation, and then sentenced for the same offense, is not

subjected to an unconstitutional second punishment for double

jeopardy purposes.”    Whitfield, 228 Ill. 2d at 520.


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     In light of Wade and Simmons, we find the order placing

defendant on probation is void because the trial court “lacked

the inherent power to order a sentence lesser than that mandated

by statute.”   Simmons, 256 Ill. App. 3d at 653; Wade, 116 Ill. 2d

at 4-7.   Because defendant’s probation sentence is void, we must

vacate his probation revocation conviction and sentence and

remand the cause for resentencing on the defendant’s original

drug conviction in accord with the proper statutory mandates.

     B. Prosecutorial Vindictiveness

     Defendant also contends the State’s attempt to void his

probation sentence--almost eight years after the sentence was

entered--is an attempt to punish defendant for having won the

appeal on his 2005 first-degree attempt murder, attempt armed

robbery, and aggravated battery convictions.   Defendant contends

the State’s efforts to void the sentence after he successfully

appealed his 2005 convictions amount to prosecutorial

vindictiveness.

     Due process prohibits the State from punishing a defendant

for exercising his right to appeal.    Blackledge v. Perry, 417

U.S. 21, 28-29, 94 S. Ct. 2098, 2103, 40 L. Ed. 2d 628, 634-35

(1974).   “A person convicted of an offense is entitled to pursue

his statutory right to a trial de novo, without apprehension that

the State will retaliate by substituting a more serious charge


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for the original one, thus subjecting him to a significantly

increased potential period of incarceration.”    Blackledge, 417

U.S. at 28, 94 S. Ct. at 2103, 40 L. Ed. 2d at 634-35.

     A presumption of prosecutorial vindictiveness is warranted

where a prosecutor brings additional or more serious charges

against a defendant after he has been convicted of an offense and

has overturned his conviction.    People v. Hall, 311 Ill. App. 3d

905, 911-12, 726 N.E.2d 213 (2000), citing Blackledge, 417 U.S.

at 27-29, 94 S. Ct. at 2102-03, 40 L. Ed. 2d at 634-35.    “When

the presumption is not applicable ‘a defendant in an appropriate

case might prove objectively that the prosecutor’s charging

decision was motivated by a desire to punish him for doing

something the law plainly allowed him to do.’ ” (Emphasis in

original.)   Hall, 311 Ill. App. 3d at 912, quoting United States

v. Goodwin, 457 U.S. 368, 102 S. Ct. 2485, 73 L. Ed. 2d 74

(1982).   Once a presumption of vindictiveness is established, the

prosecution must come forward with objective evidence of a

legitimate motivation for filing the charge.    Hall, 311 Ill. App.

3d at 912.   In this case, the State does not seek to bring an

additional or more serious charge against the defendant.

     Initially, we note the State’s cavalier attitude toward the

validity of defendant’s probation sentence in this case.    The

State never filed a formal motion to void the probation sentence


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during the probation revocation proceedings in the circuit court.

Nor did the State seek a supervisory order from our supreme court

to correct the illegal sentence entered in the possession case,

as it was entitled to do.   See Cinkus v. Village of Stickney

Municipal Officers Electoral Board, 228 Ill. 2d 200, 220-21, 886

N.E.2d 1011 (2008) (“As a general rule, this court will issue a

supervisory order only when the normal appellate process will not

afford adequate relief and the dispute involves a matter

important to the administration of justice, or intervention is

necessary to keep an inferior tribunal from acting beyond the

scope of its authority.”)

     Contrary to defendant’s contention, however, the State did

not sit idly by until after defendant’s 2005 convictions were

overturned by this court.   The record reflects the State

vigorously argued defendant’s sentence of probation was void

before it presented evidence during the probation revocation

hearing, which occurred several months before our reversal of

defendant’s conviction in Allen.       The State also strenuously

objected to the probation sentence during the original sentencing

hearing in the underlying possession case, arguing defendant

should be sentenced to a mandatory Class X penitentiary sentence

in light of his criminal background.

     In response to defendant’s argument during the revocation


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hearing that he could not have been sentenced to a Class 1 felony

because he received probation, the State said:

            “This defendant never should have been

            sentenced to probation by Judge Himel or TASC

            or mental health probation.   He should have

            been sentenced six to thirty years in the

            Illinois Department of Corrections.   *** As

            far as Judge Himel is concerned, he entered a

            void sentencing order and it has no meaning

            to this Court and it should have no meaning

            in his violation of probation hearing.   He

            got that probation.   He was on probation.

            And we are not restricted by that sentence.

            In fact, the Court is obligated in this case

            to correct what Judge Himel did and give him

            what he deserves, which is a sentence

            commensurate with the mandatory X felon, six

            to thirty years in the Illinois Department of

            Corrections.”

     In response to the State’s contentions, the trial court

said, “The sentence that Judge Himel gave him, whether it was an

illegal sentence or an improper sentence, I don’t think has

anything to do with what we do here.”


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     Defendant contends that although the State was aware

defendant’s probation sentence was void since his initial

sentencing hearing in 2001, the State made no attempt to void the

sentence until defendant’s probation violation hearing on

February 15, 2007.   We fail to see that the State had an earlier

opportunity to raise the issue before this court.   The record

does not indicate defendant appealed his 2000 possession

conviction, and the State does not have the right to directly

appeal sentencing orders under Supreme Court Rule 604(a).    188

Ill. 2d R. 604(a) (“In criminal cases the State may appeal only

from an order or judgment the substantive effect of which results

in dismissing a charge for any of the grounds enumerated in

section 114-1 of the Code of Criminal Procedure of 1963.”)    No

reported case of prosecutorial vindictiveness exists that covers

the facts present here--the probation sentence is void and the

State raised the voidness issue during the original sentencing

and probation revocation proceedings.

     In light of the record before us, we find the State’s

attempt in this appeal to void defendant’s probation sentence and

remand the cause for resentencing does not amount to

prosecutorial vindictiveness.   Because we have determined

defendant’s probation sentence was void, we need not address his

remaining contentions.


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CONCLUSION

     We void defendant’s probation sentence, vacate his probation

revocation conviction and sentence, and remand the cause for

resentencing only on defendant’s 2000 possession of a controlled

substance conviction in accordance with the proper statutory

mandates.

     Probation vacated; cause remanded for resentencing.

     R. GORDON, P.J., and HALL, J., concur.




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                  REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
                      (Front Sheet to be Attached to Each Case)

  Please use               THE PEOPLE OF THE STATE OF ILLINOIS,
following form:
                                         Plaintiff-Appellee,

  Complete                       v.
    TITLE
   of Case                 WALTER ALLEN,

                                         Defendant-Appellant.


  Docket Nos.                              No. 1-07-1763

    COURT                             Appellate Court of Illinois
                                      First District, 1st Division
   Opinion
    Filed                                  November 3, 2008

                                      (Give month, day and year)

  JUSTICES                 JUSTICE WOLFSON delivered the opinion of the court:

                           R. GORDON, P.J., and HALL, J., concurs.



APPEAL from the      Lower Court and Trial Judge(s) in form indicated in margin:
Circuit Court of
Cook County; the           Appeal from the Circuit Court of Cook County.
Hon.___________,
Judge Presiding.            The Hon. Daniel P. Darcy, Judge Presiding.


For APPELLANTS,      Indicate if attorney represents APPELLANTS or APPELLEES and
John Doe, of         include attorneys of counsel. Indicate the word NONE if
Chicago.             not represented.

For APPELLEES,             For Appellant, Sean C. Herring, Justin A. Houppert, and
Smith and Smith,           John J. Hamill, JENNER & BLOCK LLP, of Chicago.
of Chicago

                           For Appellee, Richard A. Devine, State's Attorney
Joseph Brown,              of Cook County, of Chicago. (James E. Fitzgerald,
of counsel).               Alan J. Spellberg, and Janet C. Mahoney, of Counsel.)
Also add attor-
neys for third-
party appellants
and/or appellees.

                             (USE REVERSE SIDE IF NEEDED)




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