People v. Marron

Defendant, Jose Marron, was charged with battery. When he rejected the State's offer for a plea agreement, the prosecutor charged him by information with aggravated battery (battery on a public way). Following a jury trial, defendant was convicted of the lesser included offense of battery. (Ill. Rev. Stat. 1985, ch. 38, par. 12-3(a)(2).) He was sentenced to periodic imprisonment (work release) for a term of 364 days and ordered to pay restitution in the amount of $95. Defendant appeals, contending (1) that he was not proved guilty beyond a reasonable doubt, (2) that his right to due process of law was violated because the prosecutor, without prior notice that he would do so, charged defendant with aggravated battery to punish him for exercising his constitutional right to trial, and that, as a sanction for that violation, his conviction should be reversed without a new trial, and (3) that the trial court erroneously denied his motion in limine which sought to preclude the State from introducing his prior conviction of aggravated battery to impeach his credibility in the event he testified in his own defense. • 1 Before addressing these contentions, we must consider the effect of defendant's failure to make a motion for a new trial. Generally, the failure to make such a motion results in waiver of the issues sought to be raised on appeal. (People v. Pugh (1982), 106 Ill. App.3d 901, 436 N.E.2d 737; People v. Hammond (1977), 48 Ill. App.3d 707, 362 N.E.2d 1361.) In People v. Friesland (1985), 109 Ill.2d 369, 374-75, 488 N.E.2d 261, our supreme court stated: