People v. Hise

• Decision Date: 03 August 1971
• Docket Number: Gen. No. 11409
• Citation: 1 Ill.App.3d 43,272 N.E.2d 264
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. John Donald HISE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 264

272 N.E.2d 264

1 Ill.App.3d 43

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. John Donald HISE, Defendant-Appellant.

Gen. No. 11409.

Appellate Court of Illinois, Fourth District.

Aug. 3, 1971.

John F. McNichols, District Defender, Illinois Defender Project, Springfield, J. Daniel Stewart, Staff Atty., Springfield, of counsel, for appellant.

Basil G. Greanias, State's Atty., Macon County, Decatur, for appellee.

SIMKINS, Justice.

Defendant John Donald Hise was indicted for Unlawful Use of Weapons, and the indictment alleged the possession of a firearm in a place licensed to sell intoxicating beverages in violation of Chapter 38, Section 24--1(a)(8), Illinois Revised Statutes, 1969. The indictment also charged that at the time of the offense, which occurred on December 10, 1969, the defendant had been convicted previously of a felony, and had been released from the penitentiary within five years prior to the commission of the offense charged in the indictment.

The penalty imposed by the statute for violation of Section 24--1(a)(8), supra, is a fine not to exceed $500.00 or imprisonment in a penal institution other than the penitentiary not to exceed one year or both. The significance of the charge of prior conviction and release within five years is to be found in Section 24--1(b), supra, which provides:

'A person convicted of a felony under the laws of this or any other jurisdiction, who, within 5 years of release from penitentiary * * *, violates any Subsection of this Section shall be imprisoned in the pentitentiary from one to 10 years.'

The case was tried before a jury, and the jury was instructed that to sustain the charge of Unlawful Use of Weapons, the People were required to prove (in addition to other elements of the offense) 'That the defendant was convicted of a felony under the laws of this State' and 'That the defendant was released from the penitentiary within five (5) years of said offense.'

The jury returned a verdict of guilty and the trial court imposed a sentence of five to ten years.

During the course of the trial the following stipulation, made by the People and by the defendant through his attorney, was stated to the jury:

'THE COURT: While the jury was at recess, a stipulation of fact was arrived at between the People and the defendant, which is as follows: It is stipulated that the defendant, John Donald Hise was convicted of the Felony of forgery in 1962, in the Circuit Court of Macon County, and was sentenced to the Penitentiary for an indeterminate term; was the same person on parole as charged in this cause. Is that the stipulation of the People?

MR. FICHTER: Yes, Your Honor.

THE COURT: And of the defendant?

MR. HURT: Yes, sir.'

(Emphasis supplied.)

The People also introduced into evidence the record of the prosecution in the prior forgery conviction, and it disclosed that the offense was committed on December 29, 1961, and that the information, upon which he was prosecuted, was filed February 13, 1962, and that on February 14, 1962, defendant entered a plea of guilty and was sentenced one to fourteen years in the penitentiary.

Defendant urges, in this appeal, that the prior conviction for forgery was a conviction of a misdemeanor rather than for a felony and that this will not support the enhanced penalty provision of Section 24--1(b) supra. The People argue that forgery is a felony and that the sentence was properly imposed.

The sole question before us then is whether or not defendant's conviction of forgery, on February 14, 1962, was a felony conviction. If it was the sentence imposed in this case was proper, contra, if the forgery conviction was for a misdemeanor the sentence imposed was without authority in law. We note that the issue raised here was never presented to the trial judge during the trial nor in post-trial motions, but since it affects the validity of the sentence we review the question as presented.

There is no dispute that on December 29, 1961, forgery was a felony, since the statute then provided only for imprisonment in the penitentiary (Illinois Revised Statutes, 1959, Chapter 38, Paragraph 279).

The effective date of the Criminal Code of 1961 was January 1, 1962 (Illinois Revised Statutes, 1961, Chapter 38, Section 34--4). Under its provisions a person convicted of forgery may be fined not to exceed.$1000.00 or imprisoned in the penitentiary from one to fourteen years or both (Illinois Revised Statutes, 1961, Chapter 38, Section 17--3(d)).

Defendant's argument is that the law at the time of sentencing controls the penalty which may be imposed, citing The People v. Guagliata, 362 Ill. 427, 200 N.E. 169; The People v. Hansen, 28 Ill.2d 322, 192 N.E.2d 359; People v. Wesley, 78 Ill.App.2d 350, 223 N.E.2d 428, and the provisions of Illinois Revised Statutes, 1961, Chapter 131, Section 4, and the People do not contend that this is not the principle of law applicable to this case.

Was then the crime a forgery on December 14, 1962, a felony, or misdemeanor?

Lamkin v. The People, 94 Ill. 501, appears to be the source of the rule in Illinois that where the penalty for an offense provides for the alternative of fine or imprisonment in a penal institution other than the penitentiary, Or imprisonment in the penitentiary (emphasis supplied) the offense is a misdemeanor. The rule has been consistently adhered to by the Supreme Court of this State since its origin in Lamkin, supra, the most recent instance being found in The People v. Novotny, 41 Ill.2d 401, 244 N.E.2d 182, and between Lamkin and Novotny, supra, the rule was reiterated in Baits v. The People, 123 Ill. 428, 16 N.E. 483; The People v. Stavrakas, 335 Ill. 570, 167 N.E. 852; The People v. Bain, 359 Ill. 455, 195 N.E. 42; The People v. O'Connor, 414 Ill. 51, 110 N.E.2d 209; The People v. Spector, 28 Ill.2d 554, 192 N.E.2d 926; The People v. Guagliata, 362 Ill. 427, 200 N.E. 169; The People v. Hansen, 28 Ill.2d 322, 192 N.E.2d 359.

In Novotny, supra, the Court said:

'The record contains only one complaint, a partially printed and partially typed form, which charged defendant with aggravated battery, an offense for which the alternative penalties provided may be imprisonment in the penitentiary for 1 to 10 years or imprisonment in a penal institution other than the penitentiary for not to exceed one year. (Ill.Rev.Stat.1967, chap. 38, par. 12--4(a).) Under our decisions prior to adoption of the Criminal Code of 1961 the presence of the alternative penalty of imprisonment other than in the penitentiary rendered the offense a misdemeanor. (Lamkin v. People, 94 Ill. 501; Baits v. People, 123 Ill. 428, 16 N.E. 483; People v. Stavrakas, 335 Ill. 570, 582, 167 N.E. 852.) Since no substantial...