People v. Ondrey

• Decision Date: 03 December 1976
• Docket Number: No. 48050,48050
• Citation: 357 N.E.2d 1160,2 Ill.Dec. 717,65 Ill.2d 360
• Parties: , 2 Ill.Dec. 717 The PEOPLE of the State of Illinois, Appellant, v. Larry ONDREY, Appellee.
• Court: Illinois Supreme Court

Page 1160

357 N.E.2d 1160

65 Ill.2d 360, 2 Ill.Dec. 717

The PEOPLE of the State of Illinois, Appellant, v. Larry ONDREY, Appellee.

No. 48050.

Supreme Court of Illinois.

Dec. 3, 1976.

William J. Scott, Atty. Gen., Springfield, and Frank X. Yackley, State's Atty., Ottawa (James B. Zagel, Jayne A. Carr, and Anne Taylor, Asst. Attys. Gen., James E. Hinterlong and Bernard L. Rivkin, Ill. State's Attys. Assn., Ottawa, of counsel), for the People.

Verlin R. Meinz, Asst. State Appellate Defender, Ottawa, for appellee.

WARD, Chief Justice:

On October 16, 1973, Larry Ondrey, the defendant, pleaded guilty in the circuit court of La Salle County, as will be described more specifically, to a charge of criminal damage to property not exceeding $150 (Ill.Rev.Stat.1973, ch. 38, par. 21--1(a)), and to a charge of theft of less than $150 (Ill.Rev.Stat.1973, ch. 38, par. 16--1). The defendant received concurrent sentences of 364 days and was ordered to make restitution. The appellate court reversed the judgment on the theft conviction and on the order of restitution (32 Ill.App.3d 73, 335 N.E.2d 531), and we allowed the People's petition for leave to appeal.

On March 26, 1973, Ondrey was charged by an information filed in Williamson County with burglary and theft involving over $150. On April 16, 1973, an indictment was returned in La Salle County charging him with eight counts of criminal damage to property.

On October 16, 1973, the defendant was produced in the circuit court of La Salle County pursuant to a writ of Habeas corpus issued by that court. (The defendant had been in custody in Williamson County on the charges pending there.) Following negotiations between the defendant and the State's Attorneys of La Salle and Williamson counties, the defendant informed the court that he wished to plead guilty, under the provisions of section 5--4--2(b) of the Unified Code of Corrections (Ill.Rev.Stat.1973, ch. 38, par. 1005--4--2(b)), to one count of the La Salle County indictment and to the information which had been filed in Williamson County. The State's Attorney of La Salle County had agreed to dismiss the remaining seven counts of criminal damage to property and the State's Attorney of Williamson County had stated he would dismiss the burglary charge and reduce the charge of theft to theft involving less than $150. The record indicates that the defendant, his attorney, the State's Attorney of La Salle County and the trial judge understood that the criminal information filed in Williamson County would be transferred to and filed in the circuit court of La Salle County subsequent to the defendant's plea. The information was filed in La Salle County on October 31, 1973.

The defendant argued before the appellate court that the circuit court had no jurisdiction of the theft charge since the criminal information filed in Williamson County had not been transferred to and filed in La Salle County at the time of the defendant's plea of guilty and the entering of the judgment of conviction. The defendant relied on section 5--4--2(b) of the Unified Code of Corrections, which provides:

'A defendant convicted, charged, or held in custody in a county other than that in which any other charge is pending against him may state in writing or in court that he desires to plead guilty, to waive trial in the county in which the charge is pending and to consent to disposition of the case in the county in which he is held, convicted or charged, subject to the approval of the state's attorney for each county. Upon receiving notification from the sentencing court, the clerk of the court in which the charge is pending shall transmit the papers in the proceeding or certified copies thereof to the clerk of the curt in which the defendant desires to plead guilty. Thereafter, the prosecution shall continue in that county. If after the proceeding has been transferred, the defendant pleads not guilty, the proceeding shall be restored to the docket of the court where the charge was pending.' Ill.Rev.Stat.1973, ch. 38, par. 1005--4--2(b).

The appellate court held that the circuit court of La Salle County did not have jurisdiction of the theft charge because the information had not been transferred to the circuit court of La Salle County and that the defendant's failure to object in the trial court did not waive this jurisdictional defect. The People conceded that the order of restitution was improper, and this part of the judgment of conviction was also reversed. The People do not in this court challenge the correctness of the appellate court's action on the order of restitution.

The People claim the appellate court erred, contending that the procedure of transferring the papers of prosecution under section 5--4--2(b) relates to venue, not jurisdiction, and that this procedure may be waived by the defendant.

Under our constitution of 1970 an accused has a right to trial in the county where the offense is alleged to have been committed (Ill.Const.1970, art. I, sec. 8), but like other rights of an accused, it may be waived (People v. Ackerson, 37 Ill.2d 117, 122, 224 N.E.2d 849). The place of trial is not jurisdictional and may be waived by the defendant. (People v. Dunn, 52 Ill.2d 400, 402, 288 N.E.2d 463.) All nonjurisdictional questions are waived by a voluntary plea of guilty. People v. Brown, 41 Ill.2d 503, 505, 244 N.E.2d 159.

We consider that section 5--4--2(b) of the Unified Code of Corrections relates to venue rather than to jurisdiction. We have a unified court system in Illinois, and circuit courts, with two exceptions which are not involved here, have original jurisdiction of all justiciable matters, including the offense involved here. (Ill.Const.1970, art. VI, sec. 9.) The failure to forward the Williamson criminal information or a copy of it to the circuit court of La Salle County prior to the entry of the defendant's plea of guilty was a ministerial omission which did not prevent the court from acquiring jurisdiction of the theft charge. The information charging the defendant with theft and filed in Williamson County charged an offense within the jurisdiction of the circuit court of Williamson County. Venue was...