People ex rel. Barrett v. Bardens

• Citation: 68 N.E.2d 710,394 Ill. 511
• Decision Date: 18 September 1946
• Docket Number: No. 29563.,29563.
• Parties: PEOPLE ex rel. BARRETT, Atty. Gen., v. BARDENS, Judge.
• Court: Supreme Court of Illinois

394 Ill. 511

68 N.E.2d 710

PEOPLE ex rel. BARRETT, Atty. Gen.,

v.BARDENS, Judge.

No. 29563.

Supreme Court of Illinois.

Sept. 18, 1946.

Original proceeding in mandamus by the People, in the relation of George F. Barrett, Attorney General, directing William M. Bardens, Judge of the Circuit Court of Knox County, to expunge from the records of that court an order entered granting probation to Robert G. Kooser, Sr. The defendant answered and petitioner moved to strike the answer and its motion was treated as a demurrer to the answer.

Writ awarded.George F. Barrett, Atty. Gen. (Edward Wolfe, of Springfield, of counsel), for petitioner.

John J. Ryan, John J. Kritzer, and Leonard W. Melburg, all of Monmouth, for respondent.

WILSON, Justice.

The People of the State, on the relation of the Attorney General, filed an original petition for a writ of mandamus directing the defendant, William M. Bardens, a judge of the circuit court of Knox county, to expunge from the records of the circuit court an order entered granting probation to Robert G. Kooser, Sr. The defendant interposed an answer to the petition, the petitioner moved to strike the answer, and its motion has been treated as a demurrer to the answer. Upon these pleadings, the cause has been submitted.

From the pleadings it appears that on June 1, 1942, Kooser was indicted in the circuit curt of Knox county for the crime of taking indecent liberties with a minor. Upon arraignment, he pleaded not guilty but, thereafter, on June 26, 1942, withdrew his plea previously entered, sought and was granted permission to plead guilty. Admonished as to his rights and the consequences of a plea of guilty, he persisted in his plea. The trial judge accepted the plea of guilty, found Kooser to be 57 years of age, and referred his application for probation to a probation officer for investigation and report. Subsequently, the probation officer's report was filed and the recommendation (its nature is not disclosed) accepted by the court, and the evidence was heard. Kooser next made a motion to withdraw his plea of guilty and tendered a plea of not guilty. His motion was allowed, and counsel was appointed to represent him. On July 21, 1942, Kooser again appeared in court and, this time, moved to withdraw his plea of not guilty and to again enter a plea of guilty. His motion was allowed, and no question of the regularity of the proceedings incident thereto is presented. Kooser was sentenced upon his plea of guilty to the penitentiary for an indeterminate term of not less than one nor more than 20 years, and an advisory recommendation was incorporated corporated in the judgment order recommending minimum and maximum limits of one and two years, respectively. July 22, 1942, Kooser commenced service of the sentence imposed upon him. Shortly afterwards, the amendments of 1941 to the Sentence and Parole Act, Ill.Rev.Stat.1941, c. 38, s 801 et seq., upon which the advisory recommendation was based were pronounced unconstitutional. People v. Montana, 380 Ill. 596, 44 N.E.2d 569. At the September, 1944, term of this court, Kooser's application for leave to file a writ of error was granted. In his brief, he made the single contention that the recommendation of the trial judge fixing minimum and maximum limits of imprisonment rendered the entire sentence erroneous. The relief sought was a remandment of the cause for proper sentence. At the January, 1945, term of court, the Attorney General filed a confession of error with respect to the advisory recommendation incorporated in the sentence and judgment entered in the circuit court and suggested to the circuit court of Knox county to to the circuitcourt of Knox county to sentence Kooser in conformity with the law. We allowed the confession of error on January 8, 1945, and, on the same day, the mandate of this court was issued remanding the cause to the circuit court of Knox county with directions ‘to impose a proper sentence in conformity with law.’ February 8, 1945, Kooser was brought before the circuit court in the custody of the sheriff. Proceedings were continued until February 15 when Kooser presented a motion to be admitted to probation. The matter was referred to the probation officer of the county for investigation and report and, later, on March 6, 1945, the probation officer's report recommending probation for Kooser was filed, the report was approved by the court, and Kooser released from custody and admitted to probation until July 1, 1946, upon entering a probation bond and upon the conditions described in the probation order.

Upon the basis of the facts recounted, the petition charges that the defendant judge of the circuit court disregarded the specific instructions of this court to properly sentence Kooser in conformity with law; that Judge Bardens was without authority to grant probation to Kooser and that, consequently, quently, the order admitting Kooser to probation is void. Answering, defendant avers that when Kooser appeared before him, nothing remained to be done except to pronounce sentence; that Kooser was not precluded from invoking the beneficent provisions of the Probation Act and that he, as a judge of the circuit court, was not barred from considering and disposing of the motion for probation upon its merits. Answering further, defendant avers that, upon the filing of the remanding order reversing the original judgment of sentence with the clerk of the circuit court, the court itself was reinvested with full jurisdiction not only of the subject matter but, also, of the person of Kooser, and that the latter was then restored to all the rights or privileges accruing to him under the laws of this State immediately prior to the entry of judgment of sentence when ‘nothing remains to be done 294 Ill. 64, 128 N.E. 328; Fisher v. Burks, and that he, the trial judge, was empowered and authorized, in his discretion, to admit Kooser to probation, pursuant to the prayer of his motion.

The one question of law presented for decision is whether the order of March 6, 1945, granting probation to Kooser, constitutes compliance with the mandate of this court directing the circuit court of Knox county ‘to impose a proper sentence in conformity with law.’ Admittedly, the judgment of conviction was not reversed. The only relief sought by Kooser when he sued out a writ of error was a remandment of the cause for the purpose of entering a judgment of sentence in conformity with the law. Where the directions of a reviewing court are specific, a positive duty devolves upon the court to which the cause is remanded to enter an order or decree in accordance with the directions contained in the mandate. If the mandate gives precise and unambiguous directions, they must be obeyed. People ex rel. McLaren v. DeBoice, 377 Ill. 634, 37 N.E.2d 337;Wilson v. Fisher, 369 Ill. 216, 17 N.E.2d 216;People ex rel. Callahan v. DeYoung, 298 Ill. 380, 131 N.E. 801;People ex rel. Olson, v. Scanlan, 294 Ill. 64, 128 N.E. 328;Fsher v. Burks, 285 Ill. 290, 120 N.E. 768;Prentice v. Crain, 240 Ill. 250, 88 N.E. 654;People ex rel. Stead v. Superior Court, 234 Ill. 186, 84 N.E. 875,14 Ann.Cas. 753. ‘If specific directions are given, the court can do nothing but carry out such directions.’ Town of Kaneville v. Meredith, 361 Ill. 556, 198 N.E. 857, 860. In short, if our order and the mandate issued pursuant thereto are specific and free from ambiguity, a duty rests upon the judge of the trial court upon the remandment of the cause to execute the command of this court, and, in so doing, judicial discretion may not be exercised. When Kooser appeared before the circuit court in March, 1945, he could have elected to be sentenced under the provisions of the Sentence and Parole Act, as amended in 1943, Ill.Rev.Stat.1943, c. 38, s 801 et seq., People v. Wilson, 391 Ill. 463, 63 N.E.2d 488, or he could have waived any possible benefits accruing to him under the amendments of 1943 and, had he so elected, the trial court would have had no alternative other than to pronounce sentence under the provisions of the Sentence and Parole Act, Ill.Rev.Stat.1939, c. 38, s 801 et seq., as they obtained prior to the amendments of 1941. People v. Anderson, 391 Ill. 606, 63 N.E.2d 869;People v. Lisle, 390 Ill. 327, 61 N.E.2d 381;People v. Pulfrey, 390 Ill. 387, 61 N.E.2d 372;People v. Rawls, 390 Ill. 476, 62 N.E.2d 438;People v. Panczko, 390 Ill, 398, 61 N.E.2d 355;People v. Lantz, 387 Ill. 72, 55 N.E.2d 78. So far as the pleadings disclose, Kooser made no election in this regard but, instead, made a motion for probation which was granted. Again, it affirmatively appears from the pleadings that the defendant did not impose any sentence of confinement to the penitentiary upon Kooser. The question is thus narrowed to a determination of whether the order granting probation complies with the mandate of this court directing the imposition of a proper sentence upon Kooser.

In Featherstone v. People, 194 Ill. 325, 62 N.E. 684, 687, this court observed, ‘The punishment or penalty is fixed by the law defining and inhibiting the criminal act; the sentence is the final determination of the criminal court,-the pronouncement by the judge of the penalty or punishment as the consequence...