Filed 10/22/08 NO. 4-07-1063

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,

 Plaintiff-Appellee,

 v.

ANGELA R. FELTON,

 Defendant-Appellant.

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 Appeal from

 Circuit Court of 

 Vermilion County

 No. 06CF113

 Honorable

 Claudia S. Anderson, 

 Judge Presiding.

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JUSTICE TURNER delivered the opinion of the court:

In March 2006, the State charged defendant, Angela R.

Felton, by information with four counts of forgery (720 ILCS

5/17-3(a)(2) (West 2006)). Pursuant to a plea agreement, defendant pleaded guilty to two of the four forgery counts. In July

2006, the trial court sentenced defendant to 24 months' probation

and ordered her to pay $2,979.68 in restitution. In September

2006, the State filed a petition to revoke defendant's probation,

and after a hearing, the court found defendant had violated her

probation. In November 2006, the court modified defendant's

probation by adding an additional six months of probation. In

August 2007, the State filed a second petition to revoke defendant's probation, and defendant admitted one of the violations

alleged in the petition. In November 2007, the court revoked

defendant's probation and resentenced her to three years' imprisonment and ordered her to pay $2,979.68 in restitution. Defen-
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dant filed a motion to reconsider her sentence, which the court

denied in December 2007.

Defendant appeals, asserting the trial court erred by

ordering her to pay $2,979.68 in restitution because a portion of

that amount related to one of the forgery charges that was

dismissed. We affirm in part, vacate in part, and remand with

directions.

I. BACKGROUND

The March 2006 charges against defendant were based on

four checks that were payable to defendant, purportedly made by

another, and dated January 27, 2006. The charges alleged defendant

cashed the checks with the intent to defraud. The amounts of the

checks were $994.72, $996.83, $984.72, and $988.13 for counts I

through IV, respectively. The State later filed amended charges that

added more information but did not change the crimes or the amounts

of the checks.

At a May 15, 2006, hearing, defendant pleaded guilty to

forgery counts I and II under a plea agreement. The plea agreement

provided that, if defendant pleaded guilty to counts I and II, counts

III and IV would be dismissed and she would be placed on probation,

of which the terms and conditions would be determined by the trial

court. The court accepted defendant's guilty plea and dismissed

counts III and IV.

In a June 2006 letter, the financial institution where
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defendant cashed three of the four checks requested restitution for

three checks in the amounts of $988.13, $996.83, and $994.72, for a

total of $2,979.68. At a July 2006 sentencing hearing, the trial

court sentenced defendant to 24 months' probation and, inter alia,

ordered defendant to pay $2,979.68 in restitution.

In September 2006, the State filed a petition to revoke

defendant's probation. On September 28, 2006, the trial court held a

hearing on the State's petition and found the State had proved

defendant violated her probation by failing to show up for her home

visit. In November 2006, the court modified defendant's probation

order by adding an additional six months of probation and requiring

her to comply with mental-health treatment.

In August 2007, the State filed a second petition to

revoke defendant's probation, alleging defendant failed to (1) report

to the probation office for six months, (2) pay restitution, and (3)

undergo a mental-health evaluation. At a September 2006 hearing,

defendant admitted she had failed to report to probation, and the

State withdrew the other two alleged violations. The trial court

accepted defendant's admission to the probation violation and reserved revocation of probation until sentencing. At the November

2007 sentencing hearing, the court resentenced defendant to three

years' imprisonment and ordered her to pay $2,979.68 in restitution. 

Defendant filed a motion to reconsider, arguing her sentence was

excessive. After a December 18, 2007, hearing, the court denied
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defendant's motion.

On December 26, 2007, defendant filed a notice of appeal

from the December 18, 2007, order in compliance with Supreme Court

Rule 606 (210 Ill. 2d R. 606). See Netto v. Goldenberg, 266 Ill.

App. 3d 174, 178, 640 N.E.2d 948, 952 (1994), overruled on other

grounds by Holton v. Memorial Hospital, 176 Ill. 2d 95, 118-19,

679 N.E.2d 1202, 1212 (1997) (indicating the notice of appeal may

list either the order disposing of the posttrial motion or the

order entering the judgment).

II. ANALYSIS

On appeal, defendant contends a portion of the trial

court's restitution order is void because it is related to a dismissed count.

We begin by addressing the State's argument defendant

cannot raise this issue on her appeal from the revocation of her

probation because it relates to a condition of her probation. 

Specifically, the State notes the following language from one of our

recent opinions: 

"'When no direct appeal is taken from an

order of probation and the time for appeal has

expired, a reviewing court is precluded from

reviewing the propriety of that order in an

appeal from a subsequent revocation of that

probation, unless the underlying judgment of
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conviction is void.'" People v. Gregory, 379

Ill. App. 3d 414, 418, 883 N.E.2d 762, 765-66

(2008), quoting People v. Johnson, 327 Ill. App.

3d 252, 256, 762 N.E.2d 1180, 1183 (2002).

However, when a court revokes a defendant's probation, a new sentence

is imposed. People v. Gazelle, 165 Ill. 2d 93, 97, 649 N.E.2d 381,

383 (1995); see also 730 ILCS 5/5-6-4(e) (West 2006). In this case,

when the trial court resentenced defendant, it again imposed $2,979.-

68 in restitution. Thus, defendant is not challenging a condition of

her prior probation but rather part of her new sentence imposed after

the revocation of probation. Thus, our statement in Gregory does not

prohibit defendant from raising her restitution argument.

Moreover, we disagree with the State that, if the trial

court erred as to a portion of the restitution order, the restitution

order was only voidable. Defendant contends a portion of the court's

restitution order did not comply with section 5-5-6(d) of the Unified

Code of Corrections (Unified Code) (730 ILCS 5/5-5-6(d) (West 2006)). 

It is well settled any portion of a sentence not authorized by

statute is void. People v. Thompson, 209 Ill. 2d 19, 23, 805 N.E.2d

1200, 1203 (2004). It is also well-established void orders may be

attacked at any time. Thompson, 209 Ill. 2d at 25, 805 N.E.2d at

1203. Recently, the Fifth District found a portion of a restitution

order was unauthorized by statute and thus concluded that portion was

void and not subject to procedural default. See People v. Mocaby,
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378 Ill. App. 3d 1095, 1101-02, 882 N.E.2d 1162, 1168-69 (2008). 

Accordingly, we will address whether the restitution order

is authorized by section 5-5-6(d). That issue presents a question of

law that we review de novo. See People v. Walton, 357 Ill. App. 3d

819, 822, 829 N.E.2d 396, 399 (2005) (addressing whether the trial

court complied with the statute governing presentence-investigation

reports). We note the State does not contest defendant's assertion a

portion of the restitution order was erroneous. 

Here, defendant asserts $988.13 of the $2,979.68 relates

to count IV, which was dismissed pursuant to the plea agreement. The

record supports defendant's assertion. The checks that served the

basis for counts I, II, and IV were in the amounts of $994.72,

$996.83, and $988.13, respectively. The checks for counts I and II

total $1,991.55, which is $988.13 less than the $2,979.68 restitution

order. Moreover, the financial institution's restitution letter

listed an additional check besides the two checks that served the

basis for counts I and II.

The only provision in the restitution statute addressing

dismissed charges states as follows:

"(d) In instances where a defendant has

more than one criminal charge pending against

him in a single case *** and the defendant stands convicted of one or more charges, a plea

agreement negotiated by the State's Attorney and
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the defendant[] may require the defendant to

make restitution to victims of charges that have

been dismissed or which it is contemplated will

be dismissed under the terms of the plea agreement, and under the agreement, the court may

impose a sentence of restitution on the charge

or charges of which the defendant has been convicted that would require the defendant to make

restitution to victims of other offenses as

provided in the plea agreement." 730 ILCS 5/5-

5-6(d) (West 2006).

In this case, defendant's plea agreement did not provide

for restitution for any dismissed charges. Accordingly, the trial

court was not authorized under section 5-5-6(d) of the Unified Code

(730 ILCS 5/5-5-6(d) (West 2006)) to order restitution related to the

dismissed count IV. Thus, the unauthorized portion of the restitution order is void (see Thompson, 209 Ill. 2d at 23, 805 N.E.2d at

1203), and the amount of restitution should be reduced to $1,991.55. 

Since we agree with defendant that a portion of the trial

court's restitution order is void, we do not address her alternative

argument. 

III. CONCLUSION

For the reasons stated, we vacate that portion of the

restitution order that related to count IV, affirm the trial court's
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judgment in all other respects, and remand for the entry of an

amended restitution order in the amount $1,991.51. 

Affirmed in part and vacated in part; cause remanded with

directions.

MYERSCOUGH and COOK, JJ., concur.