Find Legal Information

People v. Milton, No. 1-98-3224

1st District, December 22, 1999

THIRD DIVISION

PRESIDING JUSTICE CAHILL delivered the opinion of the court:

Following a bench trial, defendant Cleotis Milton was convicted of residential burglary, theft and possession of burglary tools and sentenced as a Class X offender to concurrent prison terms of 20 years, 5 years and 5 years, respectively. He contends that (1) the trial court erred in allowing the State to amend the indictment, thereby violating his right to a speedy trial, and (2) the trial court erred in convicting him of both residential burglary and theft. We affirm in part and vacate in part.

On August 28, 1997, defendant was indicted by a grand jury. The true bill read that an indictment was returned for "res burglary etc." But count I of the indictment charged the defendant with burglary, count II with theft, and count III with possession of burglary tools. On February 5, 1998, the State sought leave of court to amend count I from burglary to residential burglary. The State argued that the burglary charge was a typographical error and that the grand jury transcript showed that a true bill for residential burglary was sought and supported by the facts of the case. The trial court granted the motion, accepting the argument of the State. Defendant did not object to the amendment.

On April 9, 1998, the day of trial, defendant filed a motion to dismiss the charge of residential burglary. Defendant claimed that when the State amended the indictment, his right to a speedy trial was violated because more than 120 days had passed that could not be attributed to him. At the hearing on the motion, defendant did not contest the State's claim that the transcript showed that the grand jury intended to charge residential burglary and heard facts sufficient to support such a charge. The motion was denied.

At trial, eight-year-old Jarod Redrick testified that on August 4, 1997, he lived with his family at 1200 North East Avenue in Oak Park. He saw defendant take Jarod's brother's bicycle out of the back room of the house and ride away with it. Jarod testified that defendant was wearing a blue and white striped shirt and gardening gloves, and he was carrying tools. About 15 minutes later, defendant was detained by Lieutenant Robert Gryncewics because he matched the description given to the police by Jarod's parents. Jarod positively identified defendant as the man who had been in his home, and the bicycle was recovered and returned to the family.

At the time of his arrest, defendant had a black leather bag that contained a blue and white striped shirt, a screwdriver shank, a makeshift drill bit with a handle, a drill bit case and a pair of pruning shears. The evidence revealed that defendant entered the home without permission through a back door which had been extensively damaged. It was the opinion of Oak Park Officer Primak, an evidence technician, that the damage to the back door could have been caused by the tools recovered in defendant's black bag. Defendant was found guilty of all charges and sentenced as a Class X offender. He had several previous convictions for residential burglary, burglary and theft. Defendant filed a posttrial motion, which was denied.

Defendant contends on appeal that he was denied his right to a speedy trial in violation of the sixth amendment to the United States Constitution (U.S. Const., amend VI); article I, section 8 of the Illinois Constitution (Ill. Const. 1970, art. I,