People ex rel. Hanrahan v. Wilson

• Decision Date: 16 March 1971
• Docket Number: No. 43179,43179
• Citation: People ex rel. Hanrahan v. Wilson, 268 N.E.2d 23, 48 Ill.2d 30 (Ill. 1971)
• Parties: The PEOPLE ex rel. Edward V. HANRAHAN, State's Attorney, Petitioner, v. Minor K. WILSON, Circuit Judge, Respondent.
• Court: Illinois Supreme Court

Page 23

268 N.E.2d 23

48 Ill.2d 30

The PEOPLE ex rel. Edward V. HANRAHAN, State's Attorney, Petitioner, v. Minor K. WILSON, Circuit Judge, Respondent.

No. 43179.

Supreme Court of Illinois.

March 16, 1971.

Edward V. Hanrahan, State's Atty., Chicago (Robert A. Novelle and Arthur L. Belkind, Asst. State's Attys., of counsel), for petitioner.

Gerald W. Getty, Public Defender, Chicago (Suzanne M. Kohut and James J. Doherty, Asst. Public Defenders, of counsel), for respondent.

WARD, Justice.

This is an original proceeding for Mandamus brought by the State's Attorney of Cook County to compel the respondent, one of the judges of the circuit court of Cook County, to expunge an order entered in a cause pending in that court by which probation was granted to a defendant who had been convicted of possession of heroin. It is the petitioner's contention that because the defendant had a previous conviction for the possession of a narcotic drug he was not eligible for probation and that the order was beyond the jurisdiction and authority of the court and was therefore void.

On May 4, 1970, the defendant, Harold Jane, appeared in the respondent's court and entered guilty pleas to four indictments charging unlawful sale of heroin and a fifth indictment charging unlawful possession of a narcotic drug, all in violation of section 22--3 of the Criminal Code. (Ill.Rev.Stat.1967, ch. 38, par. 22--3.) On these pleas of guilty to the five indictments the respondent found the defendant guilty of possession of narcotic drugs on the last indictment and of possession as the lesser included offense on the other four indictments which charged a sale. At the time of these proceedings the defendant had a record of prior convictions, including a conviction for possession of heroin on March 5, 1969, on which he had been given probation for two years. Over the objections of the assistant State's Attorney, who recommended a sentence of 9 to 20 years under the enhanced penalty provisions of the statute relating to subsequent offenses, the court granted the defendant probation for five years, with the first year to be served in the house of correction under the work release program.

Section 38 of the Uniform Narcotic Drug Act provides in part: 'Whoever violates this Act by possessing, having under his control, manufacturing, or compounding any narcotic drug shall be fined for the first offense not more than $5,000 and be imprisoned in the penitentiary for a period of not less then 2 years or more than 10 years. For any subsequent offense the violator shall be imprisoned in the penitentiary for any term from 5 years to life. Any offense under this Act is a subsequent offense if the violator has been previously convicted of an offense under this Act or any previous Act of this State relating to narcotic drugs or of a felony under any law of the United States or of the District of Columbia relating to narcotic drugs. No probation or suspension of sentence shall be granted to any violator who has been convicted of any subsequent offense.' (Ill.Rev.Stat.1967, ch. 38, par. 22--40.) The respondent contends his order was proper because the prosecution failed to establish properly the defendant's prior conviction as required in section 38c of the Uniform Narcotic Drug Act (Ill.Rev.Stat.1967, ch. 38, par. 22--43) and also because on the basis of the general provisions for probation in the Code of Criminal Procedure (Ill.Rev.Stat.1967, ch. 38, par. 117--1) he was not bound to follow the enhanced penalty provisions or those specifically forbidding probation or suspension of sentence. As to the first contention, the respondent apparently takes the position that before an increased sentence under the statute may be imposed, the State's Attorney must file a written statement with the court describing a defendant's prior convictions. Under the circumstances here we consider this contention not to have merit.

The record shows that the respondent was aware of the defendant's prior conviction for possession and that he was at the time on probation for that offense. At the time of arraignment, the court, when discussing with the defendant the nature of the charges against him and the possible penalties, told the defendant that the court understood that the defendant was then on probation following conviction for possession of a narcotic drug. The defendan told the court that its understanding was correct. The defendant also told the court that the offenses with which he was then charged had been committed while he was on probation for the earlier offense. Later, after the finding of guilt on all charges and during the hearing in aggravation and mitigation, the assistant State's Attorney read into the record, without objection, from record sheets of the Federal Bureau of Investigation and the Chicago Police Department a list of the defendant's former convictions, including that on March 9, 1969, for the possession of heroin, and the granting of two years probation. Neither the defendant nor his counsel challenged these statements. In People v. Satterwhite, 112 Ill.App.2d 461, 463, 251 N.E.2d 297, the court held, in a situation resembling the one here, that the filing of a written statement would have been and was unnecessary in view of the defendant's admission of the prior offenses. We consider the holding to be reasonable. The respondent would distinguish Satterwhite on the ground that there the defendant's admission of the prior convictions came after a trial and finding of guilty but it is obvious such a difference is insubstantial and irrelevant. Here the defendant in the presence of his counsel admitted his prior conviction. The court was aware of this conviction, the record showing that there had been a conference prior to the formal arraignment in which it had been discussed by the court and the defendant's counsel. For us to hold under the circumstances that the prosecution was required to file,...