People v. Nordstrom

• Decision Date: 13 July 1966
• Docket Number: Gen. No. 65-88
• Citation: 219 N.E.2d 151,73 Ill.App.2d 168
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Albert Edward NORDSTROM, Appellant.
• Court: United States Appellate Court of Illinois

Page 151

219 N.E.2d 151

73 Ill.App.2d 168

The PEOPLE of the State of Illinois, Appellee, v. Albert Edward NORDSTROM, Appellant.

Gen. No. 65-88.

Appellate Court of Illinois, Second District.

July 13, 1966.

Rehearing Denied Aug. 31, 1966.

James B. Sloan, Chicago, for appellant.

Bruno W. Stanczak, State's Atty., Jack Hoogasian, Asst. State's Atty., Waukegan, for appellee.

DAVIS, Justice.

The defendant, Albert Edward Nordstrom, was convicted on July 29, 1964 for misbranding drugs, in that he knowingly and unlawfully sold a dangerous drug at retail without a prescription, contrary to the provisions of sections 17 and 29 of the Uniform Drug, Device and Cosmetic Act. (Ill.Rev.Stat.1963, ch. 111 1/2, pars. 417 and 429.) The offense was a second offense, yet the defendant was placed on probation on August 12, 1964. On April 30, 1965, his probation was revoked; he was sentenced to the penitentiary for a term of not less than one year and six months and not more than two years; and he filed notice of appeal on April 30, 1965 to review both the original judgment of guilty and the order revoking probation.

The State contends that the defendant has lost the right to review his original judgment by failure to file a notice of appeal therefrom within thirty days after August 12, 1964--the date the probation was granted. This threshold question will be first considered.

The pertinent sections of the Criminal Code provide:

'The judgment of guilty entered prior to the admission of defendant to probation shall be a final judgment subject to review under Article 121 of this Code.'

'If the defendant is admitted to probation a judgment of guilty shall be entered.'

Sections 117-1(d) and 118-1(d) of the Code of Criminal Procedure of 1963 (Ill.Rev.Stat.1963, ch. 38, pars. 117-1(d) and 118-1(d)).

The procedures for review under Article 121 of the Code were in part superseded and replaced by Supreme Court Rule 27 (Ill.Rev.Stat.1965, ch. 110, par. 101.27) which became effective in its final form on January 1, 1964. Supreme Court Rule 27(7)(a) provides:

'Appeals from the trial court shall be perfected within 30 days from the entry of the order or judgment from which the appeal is taken, provided that if the appellant applies for probation or files a motion for a new trial or in arrest of judgment, the appeal Shall be perfected within 30 days after the ruling of the court on the petition for probation or the denial of the motion. Except as provided in the next paragraph, no appeal may be taken from a trial court to a reviewing court after the expiration of 30 days from the entry of the order or judgment from which the appeal is taken.' (Emphasis ours.)

Subparagraph (b) of Rule 27(7) provides for an appeal after the expiration of 30 days and within 14 months from the entry of the judgment or order appealed from, upon the filing of a petition within one year from the entry of such order of judgment, which petition must show a meritorious claim and the absence of culpable negligence in the failure to prosecute the appeal within 30 days. No such petition was filed and it is not claimed that defendant is before this court under the provisions of this subparagraph.

There has long been confusion as to whether and when an appeal will lie if probation is granted. Prior to the adoption of the present Criminal Code, it was thought that the granting or denying of probation to an accused rested solely in the discretion of the trial court (People v. Stover, 317 Ill. 191, 196, 197, 148 N.E. 67 (1925); that upon the entry of an order for probation, the cause stood continued in the trial court during the probationary period and a reviewing court was without jurisdiction to hear any phase of the matter (People v. Mayfield, 414 Ill. 146, 148, 111 N.E.2d 164 (1953); and that the defendant had waived his right to appeal a conviction if he accepted probation. (Committee Comments, S.H.A. ch. 38, sec. 117-1). Such views were finally put to rest in 1965 by the decision in People v. Sims, 32 Ill.2d 591 593, 208 N.E.2d 569 (1965). Presently an appeal will lie from the original judgment of conviction after probation is granted, and from an order revoking probation, if perfected according to the provisions of applicable statutes and court rules. The issues are separate and independent. An accused should not be coerced into waiving an appeal by accepting probation.

As to when the time for an appeal starts to run, there likewise has been uncertainty. In the absence of a statute providing otherwise, an appeal will lie only from a final judgment. Village of Niles v. Szczesny, 13 Ill.2d 45, 48, 147 N.E.2d 371 (1958); Eva Peach, etc. v. Lester Peach, et al., Ill.App. 218 N.E.2d 504 (2nd Dist.1966); 24 C.J.S. Criminal Law § 1643, page 240. In criminal cases, the sentence, in the legal sense, is usually treated as synonymous with final judgment. People v. Becker, 414 Ill. 291, 295, 111 N.E.2d 491 (1953). In Illinois, it has been the practice, both prior to the adoption of the Code (People v. Collins, 353 Ill. 468, 471, 187 N.E. 450 (1933); People v. Andrae, 295 Ill. 445, 454, 129 N.E. 178 (1920) and under the Code (Ill.Rev.Stat.1965, ch. 38, section 118-1(d)), to grant probation before sentence is imposed. If the defendant is admitted to probation, sentence is not then imposed.

This has lead to the contention that if probation is granted there is no final judgment from which an appeal will lie and, hence, the period for appealing a conviction cannot start to run until sentence is imposed. In Toyosaburo Korematsu v. United States, 319 U.S. 432, 63 S.Ct. 1124, 87 L.Ed. 1497 (1943), the Supreme Court considered the question. Previously in Berman v. United States, 302 U.S. 211, 58 S.Ct. 164, 82 L.Ed. 204 (1937) it had decided that an appeal would lie where sentence had been imposed but was suspended, and the defendant placed on probation. There was language in Berman, however, which indicated that the court accepted the proposition that in a criminal case the sentence was the final judgment, and thus by implication, the opinion suggested that an appeal would not lie if probation were granted prior to the imposition of a sentence.

In Korematsu, probation was granted prior to the imposition of sentence; and the court held that the judgment of guilt was equally final when the imposition of the sentence itself was suspended and the defendant placed on probation. The court noted that the probationary surveillance is the same whether or not sentence is imposed; that in either case the granting of probation follows a finding of guilt and is an authorized mode of mild and ambulatory punishment intended as a reforming discipline; that whether or not sentence is imposed in the granting of probation, the liberty of one 'judicially determined to have committed an offense' is abridged in the public interest; and that probation is intended to be a means to restore offenders who are good social risks to society and to afford the unfortunate another opportunity by clemency. The court concluded 319 U.S. on page 435, 63 S.Ct. on page 1126, quoting in part from its prior decision in Berman, as follows:

"In criminal cases, as well as civil, the judgment is final for the purpose of appeal 'when it terminates the litigation * * * on the merits' and 'leaves nothing to be done but to enforce by execution what has been determined." * * * Here litigation 'on the merits' of the charge against the defendant has not only ended in a determination of guilt, but it has been followed by the institution of the disciplinary measures which the court has determined to be necessary for the protection of the public.'

For a judgment to be final and appealable, it must terminate the litigation between the parties on the merits of the cause. In need not dispose of all the issues presented by the pleadings, but it must be final in the sense that it disposes of the rights of the parties, either upon the entire controversy or some definite part thereof. Village of Niles v. Szczesny, 13 Ill.2d 45, 48, 147 N.E.2d 371 (1958); Eva Peach, etc. v. Lester Peach, et al., Ill.App.2d, 218 N.E.2d 504 (2nd Dist.1966). Certainly the judgment of guilty terminates the cause on the merits, and it is a final adjudication that the offense charged in the indictment was, in fact, committed by the defendant. If an accused is found guilty or enters a plea of guilty and is granted probation, the execution of the judgment is the continuance of the probation. We hold that the judgment of guilty is a final judgment and the time within which to perfect an appeal therefrom is not extended to such time as when the probation may be revoked.

It is assumed in the Committee Comments to section 117-1 (S.H.A. ch. 38, section 117-1) that subsection (d) provides for an appeal from an interlocutory order, since final judgment is not rendered until sentence. We agree that subsection (d) provides for an appeal from a judgment of guilty, but believe that the language of said subsection clearly provides for an appeal from such judgment as a final judgment or order and not as an appeal from an interlocutory order of guilty when probation is granted. The language is, 'The judgment of guilty * * * shall be a Final judgment * * *.' (Emphasis ours.)

If there was doubt as to when the 30 day period within which to appeal from the original judgment of guilty begins to run, Supreme Court Rule 27(7)(a)--adopted subsequent to the Code of Criminal Procedure of 1963--is now explicit. It provides that an appeal 'shall' be taken within 30 days from the entry of judgment. It then adds a provision that if appellant applies for probation, the appeal 'shall' be perfected within 30 days from the 'ruling' on the petition for probation. The language is mandatory and provides for an appeal upon the 'ruling' on the petition--not merely upon the denial of the petition. Thus, an accused must perfect an appeal from the judgment of guilty within 30 days from the...