## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Wells , 2012 IL App (1st) 083660

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. MI CHAEL

WEL L S, Defe ndant-Appe llant.

District & N o. First District, F ifth Division Docke t No. 1-08-3660

Filed Rehea ringdenied Marc h 9, 2012

April 10, 2012

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Where defe ndant was initially charg ed with two counts of ag g ravated stalking based on a violation of an order of protec tion and later the State filed an indictment identical to the earlier information with the exception of corr ection of the cas e n u mber of the order of protec tion that was alleg edly violated, defe ndant’s convictions under the indictment and the
sentenc e imposed were upheld, notwithstanding defe ndant’s contention that the State failed to charg e the acts that const ituted the ag g ravating fac tor within 120 day s in violation of defe ndant’s right to a speedy trial, since the only

differ ence betwee n the two cha rg ing instruments wa s the

case number, no new or additional ch ar ges wer e brought ag ainst defe ndant, compulsory joinder did not apply
, and the corr ect i o n of the

case number was a fo rm al defe ct the State could have corr ecte d under section 111-5 of

the Code of Criminal Proce dure.

Dec ision Under Review Appea l from the Circuit Court of C o o k C ounty , No. 05-CR-7929; the Hon. Clay

ton J . Crane, Judge , presiding

.

J udg ment Affir med.Counsel on

Appea l Michae l J

. Pell et i er , Alan D. Goldberg
, and Heidi L inn L ambros, all of State Appellate D efe nder’ s Offic e, of Chica g o, for a ppellant.

Anita M. Alvare z, State’s Attorney
, of Chicag o (Alan J

. Spellberg
, Miles J

. Kelehe r, and Sheilah O’Gr ady-Kra jniak, As s i s t ant State’s Att orney s, of counse l), for the People.

Panel J USTI CE McBRI DE deliver ed the judgme nt of the court, with opinion.
J ustices J . Gordon a

nd Howse c oncurr ed in the judg ment and opinion.

OP INION

¶ 1 Michae l Wells was found guilty of two counts of ag g ravated stalking and subsequently

was sentenc ed to th

r e e ye a r s ’ im prisonment. On appea l, defe ndant argues that his convictions for ag g ravated stalking shou l d b e re du ced to simple stalking beca use the State failed to charg e the acts t h at co n s tituted the ag g rava ting fac tor within 120 day s in violation of defe ndant’s right to a speedy trial. ¶ 2 On Marc h 11, 2004, L ak i t a S tra wd er and defe ndant appea red befor e the trial court to advanc e an emer g ency o rd er of protec tion. The trial court enter ed a plenar y order of protec tion for St

r awde r and her children ag ainst defe ndant, her estrang ed husband, continued until April 1, 2004. The conditions of the order of protec tion wer e published to the court. The judge asked defe ndant if he understood, he responde d that he did, and the judge noted on the

rec ord, “Ac knowledg e rec eipt.” The order of protec tion was initially enter ed under case number 04-437243. Howeve r, a second order of protec tion was enter ed, stating at the top of the first pag e “Corre cted Case # 04-437096.” The second an d t h i rd pag es of the order of protec tion show the number 04- 4 3 7 2 4 3 c r o s s e d o ut and 04-437096 handwr itten below it. The order s of protec tion wer e identical, except the case number. The plenar y order of protec tion in case number 04-437096 w as continued at subsequent cour t dates. ¶ 3 On April 13, 2004, in case number 04 CR 9190, defe ndant was charg ed by information with two counts of ag g ravated stalking. Count I alleg ed that defe ndant committed the offe nse of ag g ravated stalking
“in that HE, KNOWI

NGLY AND WI THOUT LAWFUL J USTI FI CATI ON, ON AT L EAST TWO SE PARATE OCCASI ONS, PLACED LAKI TA [S TRAWDER] UNDER SURVEI L LANCE, TO WI T: ON MARCH 11, 2004, [DEFENDA NT] TEL EPHONED LAKI TA [S TRAWDER] AND I NDI CATED T HAT HE WAS WATCHI NG HER RESI DENCE, AND ON MARCH 12, 2004, [DEFENDA NT] TEL EPHONED LAKI TA [S TRAWD E R ] AN D I

NDI CATED THAT HE WAS WATCHI NG HER, AND [DEFENDA

NT] TRANSMI TTED A THREAT TO LAKI TA [S TRAWDE R ] OF I MMEDIATE OR FUT URE BO DI LY HARM, TO WI T: ON MARCH 11, 2004,

-2-[DEFENDA NT ] T HR EATENED TO KI L L LAKI TA [S TRAWDER]
, AND I N CONJ UNCTI ON WI TH COMMI TTI NG THE OFF ENSE OF S T ALKI NG, [DEFENDA

NT] VI OLATED AN ORDER OF PROT E C T I ON UNDER CASE NUMB ER 04-437243, I

N VI OLATI ON OF CHAPTER 720, ACT 5, SECTI ON 12- 7.4(A)( 1) OF THE I L L I

NOI S COMPI L ED STATUTES 1992 AS AMENDED AND Contrary to the Statute, and ag ainst the peac e and dignity of the People of the State of I llinois .” ¶ 4 Count I I

alleg ed that def

endant c ommitt ed the of

fense of ag g rava

ted stalking
“in that HE, KNOWI

NGLY AND WI THOUT LAWFUL J USTI FI CATI ON, ON AT L EAST TWO SEPARATE OCCASI ONS, PLAC E D L A KI TA [S TRAWDER] UNDER SURVEI L LANCE, TO WI T: ON M AR C H 12, 2004 [DEFENDA NT] WENT TO LAKI TA [S TRAWDER ’S ] R E S I DENCE AND L EFT A NOTE ON HER MOTOR VEHI CL E, AND ON MA R CH 12, 2004, [DEFENDA NT] WENT TO LAKI TA [S TRAWDER’S] RESI DENC E AR MED WI TH A FIREARM AND DI SCHARGED THAT FIREARM, AND [DEFENDA NT] TRANSMI TTED A THREAT TO LAKI TA [S TRAWDER] OF I MMEDIATE OR FU T UR E BO DI LY HARM, TO WI T: ON MARCH 11, 2004, [DEFENDA NT] THREATENED TO KI L L LAKI TA [S TRAWDER]
, AND I

N CONJ UNCTI ON WI TH COMMI TTI NG THE OFF ENSE OF STAL KI NG, [DEFENDA

NT] VI OLATED AN ORDER OF PROTECTI ON UNDER CASE NUMB ER 04-437243, I N VI OLATI ON OF CHAPTER 720, ACT 5, SECTI ON 12-7.4(A) (1) OF THE I L L I NOI S COMPI L ED STATUTES 1992 AS AMENDED AND Contrary to the Statute, and ag ainst the peac e and dignity of the People of the State of I llinois .” ¶ 5 In J anuar

y 2005, defe ndant filed a “motion to dismiss charg e p u rs u an t t o 7 25 I L CS 5/114-1.” In the motion, defe ndant argued that the case number 04-437243 was stricken by the State and c annot be the ba sis for the cha rg e of a g g ravated stalking

. ¶ 6 On Apri l 1, 2005, the State filed an indictment ag ainst defe ndant in the instant circuit
court case number 05 CR 7929. The State charg ed defe ndant with two counts of ag g ravated stalking. Both counts are identical to the previously charg ed coun t s , except the alleg ed violated order of protec tion stated “ca se number 04-437096.” The State then nol-prossed the first information in ca se number 04 CR 9190. ¶ 7 On J uly 22, 2005, defe ndant informed the trial court t h at h e wo u l d like to repre sent himself. The trial court admonished defe ndant about proce eding pro se , but al l o we d defe ndant to repr esent himself. Def endant then made an oral motion to quash the indictment

on speedy trial g rounds. The t ri al court conducte d a hearing on defe ndant’s motion on August 31, 2005. At the hearing, defe ndant argued that the 13-month delay in filing the new indictment was “pr esumptively prejudicia l” and that he was not “apprised with re asonable

cer tainty of the prec ise offe nse in which he was charg ed, enabling the Def endant to prepa

re

a proper defe nse.” The State responde d that the new indictment did not raise new fac ts, but i n s t ea d “conta ined the exact words, exact same dates, exact same victim, ever y thing, j u s t ch ang ed the order of protec tion that was in eff ect.” The trial judge found that t h e n ew indictment alleg ed the same fa cts as in the first c harg es and de nied def endant’ s motion.

-3-¶ 8 On September 2 2
, 2 0 0 5
, d ef en d an t , now repr esente d by counsel, filed a motion to

rec onsider defe ndant’s motion to quash the indictment. Def endant argued that no valid order of protec tion was issued in case No. 04-437096 and the continuance s under the previous case could not be charg ed ag ainst defe nd an t

. T h e S t ate maintained that there wer e no new and additional charg es alleg ed in the indictment and defe ndant was on n o t i ce o f the charg es ag ainst him. The State asser ted that it was “a tec h n i ca l erro r of a number of an order of protec tion which was an incorre ct err or in the orig inal indictment.[ ] And that was corr ecte d 1 by a reindict.” At the October 2005 hearing on the motion to rec onsider, the trial court denied the motion, finding that defe ndant was place d o n n otice as to the order of protec tion and defe ndant was informed “of the appropriate charg es in order for him to defe nd himself in this

case .” ¶ 9 In September 2 0 0 7
, d ef en d an t , repr esente d by a new trial counsel, filed a motion to dismiss the indictment based on a violation of defe ndant’s right to a speedy trial. At the hearing on the motion, defe nse counsel argued that the new indictment brought a new charg e agai n s t d efe ndant that was based upon a differ ent order of protec tion. Def ense counsel

asser ted t hat t he new charg es were subject t o co mp ulsory joinder and continuance s on the orig inal charg es wer e not at t ri b u t able to defe ndant under the new indictment. The State responde d that the charg es from the new indictment wer e not subject to compulsory joinder beca use the charg es wer e based on the same fac ts and the only chang e was the number of the order of protec tion. The trial court found that the only differ ence betwee n the two charg ing instruments is the number of the order of protec tion and “[t] here ’s no question the fac ts arise the same [ sic ], ever

y thing arises the same.” The court held that defe ndant was “informe d of what act he is charg ed with, the date, [and] the individuals involved” and denied the motion to dismi ss. ¶ 10 Since defe ndant has raised one issue, the speedy trial violation, we will only discuss the evidenc e at tria l as nec essar y for this appe al. ¶ 11 At defe ndant’s bench trial, Strawder testified t h at s h e and defe ndant wer e marrie d in 2000, but separ ated in 2002. On M arc h 11, 200 4
, s h e we n t to court to obtain a restraining order ag ainst defe ndant, which the trial court issued. After court, defe ndant asked Strawder if they could g et back toge ther. When Strawder responde d in the neg ative, defe ndant replied that if he could not have her, no one would. Throughout that day
, Strawder rec eived continuous calls from defe ndant. She rec og nized defe ndant’s voice when she answe red the phone. Def

endant ag ain asked Strawder to g et back toge ther and when she said no, defe ndant threatened to kill her. That night, she started to leave the hous e with h er ch i l dren, but saw defe ndant driving down her street. Def endant said h e wa n t ed to talk to her, but then threatened to kill her. De fenda nt called he r at 4 a .m. and threatened to kill her a g ain. ¶ 12 The next morning
, Marc h 12, Strawder found a note under her wi n d s h i eld wiper. She

rec og nized it as defe ndant’s handwr iting. The note said, “Don’ t g et caught coming out of my house ag ain you’ve been war ned.” She repor

ted the incident to the police. At around 11 p.m. that night, Strawder was inside her residenc e with her children and a friend, Eric L emon. She

T he o ri ginal cha rge, as poi nte d ou t above, was by inf ormati on. 1

-4-was sitti ng by a window looking outside when she saw defe ndant running toward the house

with a gun. She hit the panic button on her alar m sy stem and called the police. Strawder went with her children to a bedroom. She hear d defe ndant bang ing on the windows and door and then she hear d gunshots. L emon testified that he saw defe ndant walk onto Strawder ’s porch, bang on the door, ring the doorbell, and yell. L emon saw defe ndant pull out his gun and fire three times at the house and three times at L emon’ s truck befor e walking down the street. L emon found thre e bullet holes in his truck. ¶ 13 Ver onica Coleman testified for the defe nse. She stated that she had thre e children with defe ndant. She worke d for the United States Post Off ice and on Marc h 9, 2004, the branc h she worke d at was robbed. She was admitted to the University of I llinois -Chicag o hospital due to stress and complications from her diabetes. She rema ined in the hospital from Marc h 9 to Marc h 16. She testified that defe ndant took car e of the children while she was at the hospital. She said he took the children to school and then spent t h e day with her until he neede d to pick the childre n up from school. In the evening, he was at t he hospi tal with the children a nd then drove them to Coleman’s house in South Holland. ¶ 14 Def

endant testified on his own behalf

. He stated that on Marc h 11, he took the childre n to sc hool, the n went to c ourt. After court, de fenda

nt went to work and told his boss that he could not work beca

use of Coleman’s illness. He then went to the hospital. He testified that he did not rec eive an order of protec tion and denied calling Strawder or leaving a note on her

car

. ¶ 15 On cross-e x amination, defe ndant admitted that the plenar y order of protec tio n w a s is s ued

on Marc h 11 and that he knew and understood the t erms o f t h e o rd er. He admitted that he
wrote Strawder letters while incar cer ated and o ff ered to pay for the damag e to L emon’s
t ru ck

. Def

endant admitted to shooting L emon’s truck. He said he was in the vici n i t y o f Strawder ’s house, but did not shoot at Strawder’ s house or ringthe doorbe ll. ¶ 16 The trial court found defe ndant guilty on both counts of ag g ravated stalking. D efe ndant filed a motion for a new trial, including a claim that the motion to dismiss indictment should have been g rante d. The trial court denied the motion. Subsequently
, the trial court sentenc ed defe ndant to a ter

m of three year s’ imprisonment. ¶ 17 This appea l followed. ¶ 18 On ap p ea l
, d ef endant argues that his convictions for ag g ravated stalking shoul d b e reduc ed to stalking beca

use his right to a

speedy trial was violated when the State f ailed to charg e the act that constituted the ag g ravating fac tor, the violation of the order of protec tion, within 120 da

y s. Def endant contends that under the orig inal charg ing instrument, he could
not have been convicted of ag g ravated stalking beca use no valid order of protec tion exis ted in case number 04-437243. There fore
, when the State indicted defe ndant for committing the

same acts in violation of the order of protec tion in case number 04-437096, the charg es wer e

new and additional and subjec t to compulsory joinder. Since the State f ailed to bring these

new charg es within 120 day s of filing the orig inal information, his right to a speedy trial was violated. ¶ 19 The State responds that the charg es wer e not subject to compulsory joinder beca use the indictment only chang ed the municipal c ase number for the order of protec tion, which did

-5-not constitute new and a dditional charg es.

¶ 20 Def

endants possess both constitutional and statutory rights to a speedy trial. U.S. Const., amends. VI
, XIV; I ll. Const.1970, art. I
, § 8; 725 I L CS 5/103-5(a) (West 2004). “While these provisions addre ss simil ar conce rns, ‘ “the rights established by eac h are not neces s arily coextensive.” ’ ” People v. W oodrum
, 223 I ll. 2d 286, 298 (2006) (quoting People v. Mayo
, 198 I ll. 2 d 5 3 0
, 5 35 (2002), quoting People v. Hall
, 194 I ll. 2d 305, 326 (2000))

. Her e, defe ndant only asser

ts a violation of his statutory right to a speedy trial and has not raised a constitutional iss ue. ¶ 21 Pursuant to sectio n 1 0 3 -5 of the Code of Criminal Procedur e of 1963, a defe ndant in custody must be tried within 120 day s from the date he was taken into custody
, “unless delay is occa sioned by the defe ndant.” 725 I L CS 5/103-5(a) (West 2004). I f a defe ndant in custody is not tried wit h i n the 120-day period, he must be discharg ed. See 725 I L CS 5/103-5(d) (W est 2004). The speedy trial period is tolled when the defe ndant contributes to or caus es

a delay of the trial. Hall
, 194 I ll. 2d at 3 2 6 -27; see 725 I L CS 5/103-5(a) (West 2004). Continuances, wher e defe nse counsel has aff irmatively agree d and has not rea s serted his demand for trial, will toll the speedy trial term. See People v. Andrade
, 279 I ll. App. 3d 292, 296-98 (1996); see also 725 I L CS 5/103-5(a) (West 2004). Howeve r, delay s attributable to

a defe ndant on the orig inal charg es are not alway s attributable to subsequently filed charg es. W oodrum , 223 I ll. 2d at 299.
“ ‘W here new and additional charg es arise from the same fac ts as did the ori gi n al charg es and the S t at e h ad knowledg e of these fac ts at the commence ment of the
prosec ution, the time within which trial is to beg in on the new and additional charg es is subject to the same statutory limit ati o n that is applied to the orig inal charg es. C o n t inuance s obtained in connec tion with the trial of the orig inal charg es can n o t b e attributed to defe ndants with respe ct to the new and additional charg es beca use these new and additional charg es wer e not befor e the court when those continuan ce s we re obtained.’ ” W

oodrum
, 223 I ll. 2d at 2 9 9 (q u o t i n g People v. W illiams
, 94 I ll. App. 3d 241, 248-49 (1981) ). ¶ 22 T h e s up re me court has clar ified that this rule is only applicable when the initia l an d subsequent charg es are subj ect to compulsory joinder. People v. Phipps , 238 I ll. 2d 54, 66 (2010). ¶ 23 Her e, defe ndant contends that since the State knew about the order of protec tion in case number 04-437096 when it charg ed defe ndant with a g g ravated stalking in April 2004, this
ag g ravating fac tor should have been charg ed at that time. Be cau s e the new and additional
ag g ravating fac tor was not brought ag ainst defe ndant u n t i l April 2005, beyond the completion of the speedy trial term, defe ndant’s conviction for ag g ravated stalking must be

vacated and the conviction reduc ed to stalking. Thus, the sole question on appea l is whether the ag g ravated stalking charg es from the later indictment constitute new and ad d i t ional charg es, subject to compulsory joinder. Since this involves a comparison of the charg es and the facts are not in dispute, this is a lega l issue that we review de novo

. W oodrum
, 223 I ll. 2d at 300. ¶ 24 The supreme court has said that the purpose of the “new and additional charg es” rule is

-6-to preve nt a “ ‘trial by ambush.’ ” W oodrum
, 223 I ll. 2d at 300 (quoting People v. W illiams
, 204 I ll. 2d 191, 207 (2003)). Without t his rule,
“ ‘[t] h e S tate could lull the defe ndant into acquie scing to pretria l delay s on pending charg es, while it prepa

red for a trial on more serious, not-yet-pe nding charg es. *** When the State filed the more serious charg es, the defe ndant would fac e a Hobson’s choice betwee n a trial without adequate prepa ration and further pretria l detention to prepa re for trial.’ ” W oodrum , 223 I ll. 2d at 300 (quoting W illiams , 204 I ll. 2d at 207). ¶ 25 Fur

ther, the supr eme c ourt in Phipps explained: “The rationale for the rule, there fore
, cente rs on whether the defe ndant had adequate notice of the subsequent charg es to allow prepa ration o f a defe nse. The focus is on whether the orig inal charg ing instrument g ave the defe n d an t s u fficient notice of the subseq u en t charg es to prepa re adequately for trial on those charg es. I f the orig inal charg ing instrument g ives a defe ndant adequate notice of the subsequent charg es, the ability to prepa

re for t rial on those charg es i s not hindere d in any way

. Thus, when the State files the subsequent charg e, the defe ndant will not fac e ‘a Hobson’s choice betwee n

a trial without adequa

te prepa ration and further pretria l detention to prepa re fo r trial.’ W illiams
, 204 I ll. 2d at 207. Rather, the defe ndant may proce ed to trial on the subsequent ch arg es with adequate prepa ration instead of being forc ed to agree to further del ay

. I n those circ umstances, the rationale for declining to attribute to th e d ef en d ant delay s in

connec tion with the origina l char g es does not apply .” Phipps , 238 I ll. 2d at 67-68. ¶ 26 In W

oodrum
, the defe ndant was charg ed with child abduction. L ater , the State amende d the charg es to add the phrase “ ‘for ot h er than a lawful purpose,’ ” but otherwise the alleg ations wer e identical. W oodrum
, 223 I ll. 2d at 292. The supreme court declined to hold that the amende d charg es wer e new and additional charg es beca use the defe ndant “could not have been surprised by the subsequent charg es beca use they wer e essentially the same as the orig inal ones.” W

oodrum
, 223 I ll. 2d at 301. The court found that the defe ndant’s right to a speedy trial had not been violated and the delay s attributable to the defe ndant on the previous ind i ct m ents continued to be attributable to him on the subsequent indictments. W oodrum
, 223 I ll. 2d at 301. ¶ 27 I n P h ipps
, the defe ndant was orig inally charg ed with an d p l ed gu i l t y t o re ck l es s homicide, b u t later the State moved to vacate the guilty plea afte r the I llinois leg islature found the rec kless homicide statute to be void and that the appropriate charg e was ag g ravated driving under the influence

. Phipps
, 238 I ll. 2d at 57-58. The trial court g rante d the motion and the State charg ed the defe ndant with ag g ravated driving under the influence

. Phipps
, 238 I ll. 2d at 58. ¶ 28 On appeal, t he suprem e co urt revie wed both charg ing instruments and found that both all eg ed the same conduct. Phipps
, 238 I ll. 2d at 68. Additionally
, rec kless homicide and
ag g ravated driving under the influence had essentially the same elements and provided the

same penalty

. Phipps
, 238 I ll. 2d at 68. The supreme court observe d that “[t] he critica l point for our speedy-trial analy sis in this case , howeve r, is not whether the State charg ed defe ndant

u n d er the corr ect version of the rec kless homicide statute, but whether the orig inal indictm e nt g ave defe ndant adequate notice to prepa re his defe nse to the subsequent charg e.” Phipps
, 238

-7-I ll. 2d at 69. The court conclude d that the ag gravated driving under the influence charg e was

not new and a dditional for spee dy trial purposes. Phipps , 238 I ll. 2d at 70. ¶ 29 This co u rt i n P eo p l e v. Davis
, 373 I ll. App. 3d 351 (2007), considere d a speedy trial challeng e. In that case , the defe ndan t wa s o rig inally charg ed with one count of criminal sexual assault. L ater , the defe ndant was indicted on two charg es. The first was the origina l count of criminal sex ual assault and the ne w count alleg ed criminal sexual assault wit h an enhanc ed penalty
, Class X, based on a p ri o r conviction for criminal sexual assault. Both
counts involved the same act with the same victim. Davis
, 373 I ll. App. 3d at 353. On appea l, the defe ndant argued that his trial counsel was ineffe ctive for failing to move to dismiss the criminal sexual a ssault ba sed on a prior conviction beca use it violated his right to a speedy trial. Davis , 373 I ll. App. 3d at 354. ¶ 30 T h is court found that the defe ndant’s right to a speedy trial was n o t v i o l at ed an d

co mp u l sory joinder did not apply beca use the defe ndant was not charg ed with a new an d additional charg e. R ather
, the new count allege d the s ame facts as the first count, but with an enha nced se ntencebased on the defe ndant’s prior conviction. Davis
, 373 I ll. App. 3d at 357. The court also found that notice to the defe ndan t was not at issue since he was presumably awa

re of his prior conviction. Davis , 373 I ll. App. 3d at 358. “Count I I did not alleg e any new elements or new crimes f or which defe ndant was being charg ed. The State
soug ht to raise the classification of the offe nse, that is, to enhanc e defe ndant’s sentenc e based on his prior conviction.” Davis , 373 I ll. App. 3d at 359. ¶ 31 Her e, both charg ing instruments alleg ed the same conduct with the only differ encebeing the number of the order of protec tion. Both charg ing instruments alleg ed two counts of
aggra vated stalking based on acts that occur red on Marc h 11 and 12, 2004, in whi ch defe ndant repe atedly called Strawder
, left a note on her windshield wiper, came to her house

arme d with a firea

rm and fired shots toward the h o u s e, an d threatened to kill Strawder in violation of an order of protec tion. The later indictment did not bring any new and additional charg es ag ainst defe ndant and co mp u l s o ry joinder does not apply in this case

. As the
supreme c ourt has held, the focus of the rule for new and additional charg es is whether the d ef en d an t had sufficient notice of the additi onal charg es t o be able to prepa re his defe nse. See Phipps
, 23 8 I l l

. 2 d at 67. Under the circ umstances of the prese nt case , defe ndant had adequate notice to prepa

re his defe nse beca

use the charg es wer e identical. The only chang e

was to corr ect a technica l err or, an incorre ct case number for the order of protec tion. Simi lar
to Davis
, def

en dant admitted at trial that he knew of the order of protec tion obtained by Strawder and the rec ord shows that defe ndant was serve d with the order of prot ection in
court. The fac tual basis was the same for both charg ing instruments an d d efe ndant was informed of

the cha rg es ag ainst him. As the supreme c ourt found in W oodrum , “def

endant could not have be en surpr ised by the subsequent c harg es bec ause the y wer e esse ntially the

same a s the orig inal ones.” W oodrum , 223 I ll. 2d at 301. ¶ 32 Fu rt h er , we point out that under section 111-5 of the Code of Criminal Procedu re o f 1963, an indictment or infor mation may be amended at any time to corre ct forma l defe cts, including a m iswriting. 7 25 I L CS 5/111-5 (West 2004). “Formal amendment i s war rante d
espec ially wher e the defe ndant is not surprised or prejudice d or wher e the rec ord shows he

was otherwise made awa

re of the actua l charg e.” People v. Milton
, 309 I ll. App. 3d 863, 866

-8-(1999). “F ormal defe cts are distinguished from substantive chang es that alter the nature and

elements of the offense charg ed.” Milton
, 309 I ll. App. 3d at 8 6 6

. Formal amendments do

n o t i mplicate speedy trial rights. Milton
, 309 I ll. App. 3d at 866. In the instant ca s e, t h e

corr ection of the case number for the order of protec tion was a formal defe ct which the State could have corr ecte d under section 111-5. T h e i n d i ct m ent did not alter the nature of the offe nse or the elements. As previously stated, it was identical to the prior charg ing instrument

ex cept for the corr ection of the case number of the order of protec tion. Acc ord i n gl y , t h e indictment di d not raise a new and additional charg e when the State corr ecte d a formal mistake and de fenda

nt’s speedy

trial rights were not impli cate d. ¶ 33 Ba sed on the for eg oing r easons, we aff irm defe ndant’s convic tion and sentenc e.

¶ 34 Affir

med.

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