People v. Baker

• Decision Date: 01 July 1980
• Docket Number: No. 79-244,79-244
• Citation: 85 Ill.App.3d 661,406 N.E.2d 1152,40 Ill.Dec. 785
• Parties: , 40 Ill.Dec. 785 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Aaron BAKER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1152

406 N.E.2d 1152

85 Ill.App.3d 661, 40 Ill.Dec. 785

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Aaron BAKER, Defendant-Appellant.

No. 79-244.

Appellate Court of Illinois, Second District.

July 1, 1980.

Mary Robinson, Deputy State App. Defender, Mark Schuster, Asst. State App. Defender, Elgin, for defendant-appellant.

J. Michael Fitzsimmons, State's Atty., Robert L. Thompson, Asst. State's Atty., Wheaton, Phyllis J. Perko, Jan Tuckerman, State's Attys. App. Service Commission, Elgin, for plaintiff-appellee.

VAN DEUSEN, Justice:

Defendant, Aaron Baker, was charged by information with two counts of theft and one of burglary. On January 13, 1977, following a jury trial, he was found guilty and judgments were entered against him on all three counts. At the sentencing hearing on March 14, 1977, on motion of the State's Attorney, the trial court vacated the judgments on the theft charges and imposed a sentence of two to six years on the burglary charge. The defendant appealed his burglary conviction, and this court reversed his conviction in People v. Baker (1978), 59 Ill.App.3d 100, 16 Ill.Dec. 545, 375 N.E.2d 176. This court's mandate did not include a remandment to the trial court for any purpose. After this court issued its mandate, the State motioned the trial court to reinstate the judgments of conviction on the theft charges and to impose sentence thereon. In light of the fact that the burglary conviction had been reversed, on April 28, 1978, and within 30 days of the issuance of this court's mandate, the trial judge reentered judgments on the theft convictions during a hearing at which neither the defendant nor his attorney was present. The defendant subsequently moved the court to vacate its order reinstating the theft convictions; the trial judge denied the motion and later imposed sentence on the defendant.

Defendant contends that, since this court on the original appeal entered its order and issued its mandate reversing the burglary conviction and did not remand the cause to the trial court for any purpose, the trial court had no authority or jurisdiction to act outside this court's mandate. The State maintains that when the trial court, on March 14, 1977, vacated the judgments it had entered on the theft convictions, it did so because the trial court believed that under the case law it did not have authority to enter judgments on the theft charges in view of the judgment on the burglary charge. The State then asserts that the theft convictions were incomplete judgments implicitly attendant to the defendant's original appeal on the burglary charge and that, upon reversal of the burglary conviction, the trial court regained jurisdiction for imposition of sentence on the incomplete judgments on the theft charges.

It is a basic rule of law in Illinois that with few exceptions, none here applicable, the proper filing of a notice of appeal causes the jurisdiction of the reviewing court to attach instanter and concomitantly deprives the trial court of jurisdiction of the cause. (Sherman v. Sherman (1979), 74 Ill.App.3d 451, 455, 30 Ill.Dec. 412, 393 N.E.2d 67; Powers v. National Mirror Works (1977), 52 Ill.App.3d 592, 597, 10 Ill.Dec. 310, 367 N.E.2d 763; People v. Kleba (1971), 1 Ill.App.3d 563, 565, 275 N.E.2d 174; see People v. Long (1977), 55 Ill.App.3d 764, 778, 13 Ill.Dec. 288, 370 N.E.2d 1315). The original appeal to this court was perfect when the defendant properly filed his notice of appeal, pursuant to Supreme Court Rule 606(a) (Ill.Rev.Stat.1975, ch. 110A, par. 606(a)), with the clerk of the trial court on April 14, 1977. Thus, the reviewing court gained jurisdiction of the cause, and the trial court accordingly lost jurisdiction, at that time.

It is equally well established that a reviewing court retains jurisdiction of the cause until it issues its mandate and that the mandate of a reviewing court gives the trial court jurisdiction to do only that which the mandate requires. (Thomas v. Durchslag (1951), 410 Ill. 363, 365, 102 N.E.2d 114; People v. Dukett (1975), 33 Ill.App.3d 863, 865, 338 N.E.2d 487; People v. Street (1974), 19 Ill.App.3d 541, 311 N.E.2d 796; People v. Bain (1973), 10 Ill.App.3d 363, 364, 293 N.E.2d 758; Hamilton v. Faulkner (1968), 96 Ill.App.2d 415, 418, 238 N.E.2d 631; see Hornof v. Kroger Co. (1968), 40 Ill.2d 545, 546, 240 N.E.2d 658). The court in Hamilton v. Faulkner stated the rule as follows:

"Where, after reviewing a case on its merits, this court reverses the judgment of the trial court or reverses and remands the cause to that court with directions to enter a specific judgment, there is nothing for that court to decide or determine. Neither the trial court nor the parties have any authority to take any further action in the case except such as is necessary to carry out the mandate of the reviewing court. (Citation.)" 96 Ill.App.2d 415, 418, 238 N.E.2d 631, 633.

Thus, where a reviewing court reverses without remanding the cause to the court below, there is nothing further for the lower court to determine. When the trial court acts outside the scope of the reviewing court's mandate and hence beyond its own authority or jurisdiction, the trial court's order will be reversed and vacated. Martin v. Prairie Rod & Gun Club (1978), 65 Ill.App.3d 952, 955, 22 Ill.Dec. 597, 382 N.E.2d 1295.

The State's contention that the effect of this court's mandate in People v. Baker was to reverse the burglary conviction and remand the two "incomplete" theft convictions to the trial court for the imposition of sentence is without merit for at least two reasons. In the first place, the record indicates that the trial judge vacated the judgments entered on the theft convictions and did not merely refrain from imposing sentence on the convictions. The word used by the court, both in its original order of March 14, 1977, and its reinstatement order of April 28, 1978, and the word employed by the State in its motion during the original sentencing hearing was "vacate." Since a judgment which is vacated is entirely destroyed (23 Ill.L. & Prac. Judgments § 209 (1979); Black's Law Dictionary 1388 (5th ed. 1979), there were no incomplete judgments upon which the trial court could have entered sentence.

Secondly, even if we assume for the sake of argument that the trial court had not vacated the judgments of conviction but rather had only failed to impose sentence thereon, the State's position is still without merit. The State has cited...