People v. Curry

• Decision Date: 27 August 1971
• Docket Number: Gen. Nos. 11396,11434
• Citation: 272 N.E.2d 669,1 Ill.App.3d 87
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Larry CURRY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 669

272 N.E.2d 669

1 Ill.App.3d 87

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Larry CURRY, Defendant-Appellant.

Gen. Nos. 11396, 11434.

Appellate Court of Illinois, Fourth District.

Aug. 27, 1971.

Morton Zwick, Executive Director, Ill. Defender Project, Chicago, for defendant-appellant; Matthew J. Moran, Deputy Director, Ill. Defender Project, Chicago, of counsel.

Everett L. Laury, State's Atty., Vermilion County, Danville, for plaintiff-appellee.

CRAVEN, Justice.

We review two proceedings in this consolidated appeal. In January 1968, the defendant was indicted for burglary of a jewelry store and petty theft. He was represented by the then appointed public defender of Vermilion County, John Unger, when on March 1968 he entered a plea of guilty. Upon his motion the defendant was admitted to probation for a period of four years.

In January 1969 a Petition for Revocation of Probation was filed alleging certain violations of the terms and conditions of probation. Thereafter, in June of 1970, an amended petition was filed. This amended petition alleged, in addition to the charges previously filed, that the defendant committed the offense of burglary of the Cheker Oil Company on August 13, 1969 as charged in a specified indictment. This amended petition further stated that the defendant had entered a plea of guilty to this subsequent charge, the plea having been entered on June 18, 1970.

At a hearing on the Petition for Revocation on June 25, 1970, the record shows that the then state's attorney, the former public defender, John Unger, appeared for the People. There was no appearance for the defendant on that date. The court appointed the public defender, Mr. Litak, to represent the defendant. The record contains a statement by Mr. Unger to the court that he suspected that he represented the defendant in the original proceedings, resulting in the probation, the revocation of which was being sought.

On June 30 at a further hearing, John Unger, as state's attorney, appeared for the People and the public defender previously appointed appeared for the defendant. The defendant testified, admitted the burglary of the Checker Oil Company, described the offense, and further testified an to his activities while on probation. He was cross-examined by the state's attorney. Probation was revoked. A hearing in aggravation and mitigation was held and the defendant was sentenced to a term of not less than 5 nor more than 8 years for the original offense. This sentence was made to run concurrently with a sentence of not less than 1 nor more than 2 years imposed on his plea of guilty to the charge of burglarizing the Cheker Oil Company. Our case 11396 is the appeal from this proceeding revoking probation.

Our case 11434 is an appeal from the conviction upon the charge of burglarizing the Cheker Oil Company. In that case the sole issue is the validity of the indictment in view of an error as to the alleged year of the offense. That arises by reason of the following chronology. In April 1970 an information was filed alleging the burglary of the Cheker Oil Company, the offense allegedly having been committed on the 13th of August, 1969. Thereafter, a grand jury indictment was returned charging the same offense. The date specified in the indictment, however, was August 13, 1970. That indictment was on May 5, 1970. On June 18, 1970, with court appointed counsel and after a full and complete admonition, the defendant entered a plea of guilty to the offense as alleged in the indictment. It is urged upon this appeal that a conviction based upon a plea in June 1970 to an indictment returned in May 1970 charging an offense alleged to have been committed in August 1970 is a void conviction and one which will not sustain a revocation of probation.

We agree with the contention of the defendant, supported by ample authority, that a void indictment, even though there is a plea of guilty, will not sustain a conviction. It does not follow, however, that the typographical error as to date here, the error being patent, constitutes a void indictment. In People v. Adams, 109 Ill.App.2d 385, 248 N.E.2d 748, the indictment contained an omission as to the year of the offense, stating only that the offense was committed on or about '29th June'. The court there held that such defect was one of form and did not render the charge fatally deficient. The reasoning there is applicable here. See also People v. Greenwood, 115 Ill.App.2d 167, 253 N.E.2d 72; and People v. Price, Ill.App., First District, 270 N.E.2d 565. We hold this indictment to be valid. In the context of the entire record it is clear that the date of the offense was known to the defendant. His plea of guilty and testimony relates to the charged offense and the trial court ascertained from the defendant that there was a factual basis for his plea of guilty. Thus we find no defect that did constitute a void or even a voidable proceeding.

We turn now to the question of the validity of the proceedings for revocation of probation and the issue tendered by reason of the fact that the defendant's appointed attorney at the time of the plea of guilty to the original charge was subsequently the state's attorney and appeared on behalf of the People requesting revocation of probation and sentencing under the original offense. Even though such probation revocation is not based upon a void subsequent conviction, the proceeding must be reversed because of the improper representation.

In People v. Gerold, 265 Ill. 448, 107 N.E. 165, the court discussed the question of the propriety of one who has represented an individual to subsequently engage in the prosecution of the individual for acts arising during the representation and holds such to be reversible error. The reasoning of the court and the philosophy expressed there is applicable here and this procedure was subject to the same infirmity. We must therefore reversed and remand the revocation proceedings.

In March 1968 when the defendant entered a plea of guilty to the original offense--burglary of the jewelry store--he had conferences with...