People v. Davis

• Decision Date: 26 August 1993
• Docket Number: No. 73964,73964
• Citation: 619 N.E.2d 750,156 Ill.2d 149,189 Ill.Dec. 49
• Parties: , 189 Ill.Dec. 49 The PEOPLE of the State of Illinois, Appellant, v. Mark DAVIS, Appellee.
• Court: Illinois Supreme Court

Page 750

619 N.E.2d 750

156 Ill.2d 149, 189 Ill.Dec. 49

The PEOPLE of the State of Illinois, Appellant, v. Mark DAVIS, Appellee.

No. 73964.

Supreme Court of Illinois.

Aug. 26, 1993.

Roland W. Burris, Atty. Gen., Springfield, and Paula Phillips, State's Atty., Effingham (Rosalyn B. Kaplan, Sol. Gen., Terence M. Madsen and Michael M. Glick, Asst. Attys. Gen., Chicago, and Norbert J. Goetten, Stephen E. Norris, and Gerry R. Arnold, Office of the State's Attys. App. Pros., Mt. Vernon, of counsel), for the People.

Daniel M. Kirwan, Deputy Defender, and E. Joyce Randolph, Asst. Defender, Office of the State App. Defender, Mt. Vernon, for appellee.

Justice FREEMAN delivered the opinion of the court:

Following a jury trial in the circuit court of Effingham County, defendant, Mark Davis, was found guilty of unlawful possession of cannabis (Ill.Rev.Stat.1987, ch. 56 1/2, par. 704(c)), and unlawful possession with intent to deliver cannabis (Ill.Rev.Stat.1987, ch. 56 1/2, par. 705(c)). The trial court imposed a single sentence of 18 months' probation, conditioned upon his serving 72 days of periodic imprisonment and payment of: (1) $1,040 in fines and court costs, (2) $160, the street value of the illegal drugs, and (3) a $25 monthly probation fee. No post-trial motions were filed and no appeal was taken.

In January 1990, defendant filed a pro se post-conviction petition under the Post-Conviction Hearing Act (Act) (Ill.Rev.Stat.1987, ch. 38, par. 122-1 et seq.), in which he alleged that, prior to his trial, the prosecuting attorney engaged in a telephone conversation with a person who later served as a juror in defendant's trial. The prosecutor failed to disclose the communication to defendant, resulting in a violation of defendant's right to a fair and impartial trial. Post-conviction counsel was appointed and an amended petition was filed on defendant's behalf. The amended petition alleged that, as a result of the undisclosed conversation, defendant was denied due process, effective assistance of counsel, and a fair trial. (U.S. Const., amends. V, VI, XIV; Ill. Const.1970, art. I, §§ 2, 8.) No additional claims were raised in the amended petition. Following an evidentiary Defendant appealed the denial to the appellate court. The appellate court remanded the cause to the trial court with instructions to vacate the judgment for unlawful possession of cannabis and appoint post-conviction counsel to comply with the requirements of Rule 651(c) (134 Ill.2d R. 651(c)). 229 Ill.App.3d 869, 171 Ill.Dec. 571, 594 N.E.2d 423.

[189 Ill.Dec. 52] hearing, the trial court denied defendant's petition for post-conviction relief.

We granted the State's petition for leave to appeal (134 Ill.2d R. 315(a)), and now reverse the appellate court.

DISCUSSION

CONVICTION ON THE LESSER INCLUDED OFFENSE

On appeal of the denial of post-conviction relief, the appellate court noted that unlawful possession of cannabis is a lesser included offense of possession of cannabis with intent to deliver. (See Ill.Rev.Stat.1987, ch. 38, par. 2-9(a); People v. Jones (1992), 149 Ill.2d 288, 293, 172 Ill.Dec. 401, 595 N.E.2d 1071.) The court held that defendant's conviction for the lesser offense of possession was void and, therefore, vacated the conviction.

The State concedes that the conviction on the lesser included offense is improper. (See People v. Lewis (1980), 83 Ill.2d 296, 47 Ill.Dec. 314, 415 N.E.2d 319; People v. King (1977), 66 Ill.2d 551, 6 Ill.Dec. 891, 363 N.E.2d 838.) Nonetheless, the State contends that the appellate court erred by vacating defendant's conviction. Defendant urges that the appellate court's vacatur of the improper conviction was proper. It is his contention that the conviction offends the constitutional prohibition against double jeopardy. U.S. Const., amends. V, XIV; Ill. Const.1970, art. I, § 10.

The whole of the State's argument, with respect to the improper conviction, is intended to preclude our consideration of the issue. We consider first the State's argument that the appellate court lacked jurisdiction to address the issue of the improper conviction. It is the State's position that because no sentence was entered on the conviction for the lesser included offense, there is no final, appealable judgment. (See People v. Rose (1969), 43 Ill.2d 273, 278, 253 N.E.2d 456; People ex rel. Filkin v. Flessner (1971), 48 Ill.2d 54, 268 N.E.2d 376.) In support of its position that no sentence was entered, the State points out that the "Probation Order" form notes only the conviction for the greater offense, unlawful possession with intent to deliver.

We disagree with the State's reasoning. The "Probation Order" form is not dispositive. Further, it appears to us that the abbreviated statement of the conviction on the form results for no other reason than lack of space.

The "Judgment and Sentence" was entered in the record on May 26, 1989, and signed by the sentencing judge. On one line of the "Judgment and Sentence" form, it states that "defendant is guilty of the crime of Unlawful Possession with Intent to Deliver Cannabis." On the very next line, the form states "Unlawful Possession of Cannabis." The parties do not contend that defendant was not convicted of both offenses.

The sentence imposed, which is also entered on the "Judgment and Sentence" form, is general; the entry does not designate that the sentence is for a particular offense or count. We are, therefore, unable to conclude that the general sentence is solely for the greater offense. However, because the "Judgment and Sentence" recites defendant's conviction for both offenses, we believe it to be a reasonable conclusion that the sentence pertains to both offenses. We conclude that the judgment was final, and that the appellate court's jurisdiction was, therefore, proper.

The State next argues that the improper conviction does not rise to the level of constitutional error. It is the State's contention that because defendant was not sentenced on both convictions, there was no multiple punishment as prohibited by the double jeopardy clause. (See Brown v. Ohio (1977), 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187.) Therefore, the State contends, defendant's improper-sentencing argument In light of our conclusion that the sentence imposed pertained to both convictions, we reject the State's argument.

[189 Ill.Dec. 53] is a "sham," and not cognizable under the Act. Defendant takes the position that because the improper conviction implicates double jeopardy concerns, this court may properly notice [156 Ill.2d 155] and vacate it in the context of this post-conviction proceeding.

Further, defendant maintains, the improper conviction issue does not depend, for its viability, on the Post-Conviction Hearing Act because the conviction constitutes a void judgment. Defendant finds support for the conclusion that the judgment is void in various opinions rendered by our appellate court. (See People v. Johnson (1990), 200 Ill.App.3d 1018, 146 Ill.Dec. 644, 558 N.E.2d 607; People v. Rodriguez (1988), 169 Ill.App.3d 131, 139, 119 Ill.Dec. 717, 523 N.E.2d 185; see also People v. Perruquet (1989), 181 Ill.App.3d 660, 130 Ill.Dec. 284, 537 N.E.2d 351 (sentence in excess of what statute permits is void).) The State argues that the improper conviction constitutes a voidable judgment which is not subject to collateral attack. See People v. Holder (1991), 213 Ill.App.3d 109, 156 Ill.Dec. 744, 571 N.E.2d 528 (claim that multiple convictions were improper can be waived by failure to raise the issue in the trial court); accord People v. Schaefer (1989), 188 Ill.App.3d 317, 135 Ill.Dec. 326, 543 N.E.2d 894; People v. Gray (1988), 171 Ill.App.3d 860, 121 Ill.Dec. 726, 525 N.E.2d 1033.

The term "void" is so frequently employed interchangeably with the term "voidable" as to have lost its primary significance. Therefore, when the term "void" is used in a judicial opinion it is necessary to resort to the context in which the term is used to determine precisely the term's meaning. Whether a judgment is void or voidable presents a question of jurisdiction. (Herb v. Pitcairn (1943), 384 Ill. 237, 241, 51 N.E.2d 277.) Jurisdiction is a fundamental prerequisite to a valid prosecution and conviction. Where jurisdiction is lacking, any resulting judgment rendered is void and may be attacked either directly or indirectly at any time. (5 Callaghan's Illinois Criminal Procedure § 39.09 (1971).) By contrast, a voidable judgment is one entered erroneously by a court having jurisdiction and is not subject to collateral attack. See 5 Callaghan's Illinois Criminal Procedure § 39.09 (1971).

In Illinois, jurisdiction is conferred by the constitution. (People v. Gilmore (1976), 63 Ill.2d 23, 344 N.E.2d 456.) Pursuant to article VI, section 9, of our constitution, the circuit courts have jurisdiction over all justiciable matters. (Ill. Const.1970, art. VI, § 9.) As applied in the context of criminal proceedings, the term "subject matter" jurisdiction means the power to hear and determine a given case. 22 C.J.S. Criminal Law § 149 (1989).

Some authorities, including this court, have held that the power to render the particular judgment or sentence is as important an element of jurisdiction as is personal jurisdiction and subject matter jurisdiction. Without such power the judgment or sentence is void. (See People ex rel. Rice v. Appellate Court (1971), 48 Ill.2d 195, 197, 268 N.E.2d 420; Thayer v. Village of Downers Grove (1938), 369 Ill. 334, 339, 16 N.E.2d 717; 22 C.J.S. Criminal Law § 150 (1989); H. Black, The Law of Judgments § 258 (1891).) However, jurisdiction or power to render a particular judgment does not mean that the judgment rendered must be the one that should have been rendered, for the power to decide carries with it the power to decide wrong as well as to decide right. People v. Kidd (1947), 398 Ill. 405, 409, 75 N.E.2d 851; 49 C.J.S. Judgments § 19, at 50 n. 40 (1947), citing ...