People v. Scott

• Decision Date: 30 November 1977
• Docket Number: No. 49352,49352
• Citation: People v. Scott, 370 N.E.2d 540, 69 Ill.2d 85, 12 Ill.Dec. 736 (Ill. 1977)
• Parties: , 12 Ill.Dec. 736 The PEOPLE of the State of Illinois, Appellee, v. Delbert SCOTT, Appellant.
• Court: Illinois Supreme Court

Page 540

370 N.E.2d 540

69 Ill.2d 85, 12 Ill.Dec. 736

The PEOPLE of the State of Illinois, Appellee, v. Delbert SCOTT, Appellant.

No. 49352.

Supreme Court of Illinois.

Nov. 30, 1977.

Ralph Ruebner and James Geis, Deputy State Appellate Defenders, Chicago (Steven Clark, Asst. Public Defender, Chicago, of counsel), for appellant.

William J. Scott, Atty. Gen., Springfield, and Bernard Carey, State's Atty., Chicago (Donald B. Mackay, Asst. Atty. Gen., and Laurence J. Bolon and Iris E. Sholder, Asst. State's Attys., of counsel), for the People.

GOLDENHERSH, Justice.

Following a bench trial in the circuit court of Cook County, defendant, Delbert Scott, was found guilty of two counts of armed robbery and one count each of rape, aggravated battery, and aggravated kidnapping. He was sentenced to concurrent terms of not less than 25 nor more than 50 years for rape and armed robbery, and not less than 3 nor more than 10 years for aggravated battery. Holding that the conviction for aggravated kidnapping "would merge into the rape count," the circuit court imposed no sentence for the conviction of aggravated kidnapping. The appellate court affirmed (45 Ill.App.3d 487, 4 Ill.Dec. 45, 359 N.E.2d 878) but remanded the cause to the circuit court "for entry of a sentence on the aggravated kidnapping conviction." We allowed defendant's petition for leave to appeal.

The facts are adequately stated in the opinion of the appellate court and need not be repeated here. Defendant contends that in remanding the cause for imposition of a sentence on the aggravated kidnapping count the appellate court expanded the People's right to appeal (58 Ill.2d R. 604(a)) that it was without power to enter the order for the reason that no such action is authorized by Supreme Court Rule 615(b) and that the remand for the imposition of the additional sentence punished the defendant for having appealed from the judgment of the circuit court, thus denying him due process of law. It is the People's position that when the defendant, on appeal, raised the question of the propriety of the conviction of aggravated kidnapping the People properly requested that the cause be remanded for the entry of a sentence, and that in remanding for that purpose the appellate court acted within the scope of its powers. The People contend further that defendant was not punished for the exercise of his right to appeal and that there was no increase of punishment on the aggravated kidnapping count since no sentence had previously been imposed.

We need not and do not decide the question whether absent an appeal by defendant the People could have sought review of the order "merging" the aggravated kidnapping conviction and the failure to impose sentence on that count. On this record the question presented is whether, having before it the defendant's appeal seeking reversal of the conviction for aggravated kidnapping, the appellate court was empowered to remand the cause for imposition of sentence. In compliance with article VI, section 16, of the Constitution of 1970, this court has promulgated rules governing appeals and has enumerated the powers of reviewing courts in civil (58 Ill.2d R. 366(a)) and in criminal (58 Ill.2d R. 615(b)) appeals. Although Rule 366 is not specifically made applicable to criminal appeals (58 Ill.2d R. 612), in People v. Lilly, 56 Ill.2d 493, 309 N.E.2d 1, the court, citing Rule 366, held that it had authority to vacate an incomplete judgment entered on a verdict. Following Lilly, we hold that in remanding the cause to the circuit court for entry of a sentence on the aggravated kidnapping conviction the appellate court acted within the scope of its powers.

Defendant points out that...