People v. Smith

Decision Date27 November 1974
Docket NumberNo. 46461,46461
Citation59 Ill.2d 236,319 N.E.2d 760
PartiesThe PEOPLE of the State of Illinois, Appellee, v. James SMITH (Audrey Murphy), Appellant.
CourtIllinois Supreme Court

James J. Doherty, Public Defender, Chicago (Harold A. Cowen and John T. Moran, Jr., Asst. Public Defenders, of counsel), for appellant.

William J. Scott, Atty. Gen., Springfield, and Bernard Carey, State's Atty., Chicago (James B. Zagel, Asst. Atty. Gen., and Patrick T. Driscoll, Jr., and Scott W. Petersen, Asst. State's Attys., of counsel), for the People.

KLUCZYNSKI, Justice:

Defendant, Audrey Murphy, a/k/a James Smith, was placed on five years' probation conditioned upon his serving the first nine months in the House of Correction for armed robbery following a 'stipulated bench trial' in the circuit court of Cook County. The appellate court affirmed his conviction (People v. Smith, 16 Ill.App.3d 100, 305 N.E.2d 714), and we granted leave to appeal. Defendant asserts that his conviction was improper because it violated his constitutional and statutory right against double jeopardy and the proceeding itself was tantamount to a guilty plea which entitled him to the appropriate admonishments set forth in Supreme Court Rule 402, Ill.Rev.Stat.1973, ch. 110A, § 402. (50 Ill.2d R. 402.) We have been advised that defendant has completed the period of incarceration imposed upon him, thereby rendering moot any consideration of the propriety of the sentence under our decision in People v. Grant, 57 Ill.2d 264, 312 N.E.2d 276.

The undisputed facts indicate that on or about January 8, 1971, defendant was arrested and charged with armed robbery. He identified himself to police by the fictitious name of James Smith and further indicated that he was 17 years of age or older. Defendant and an accomplice appeared before a judge of the circuit court of Cook County assigned to the municipal department, first district. Defendant, who was represented by counsel appointed by the court, pleaded guilty to misdemeanor offenses of theft, criminal trespass to a vehicle and aggravated assault, after waiving indictment in the matter. The charge of armed robbery was nolle prossed and defendant was granted one year probation conditioned upon his serving the first 90 days in the House of Correction. Several minutes later, defense counsel told the trial court that after the guilty pleas were entered defendant's mother informed counsel of his true identity and the fact that he was a juvenile who was 16 years old. Defense counsel indicated that the matter appeared to be within the jurisdiction of the juvenile court and that the assistant State's Attorney concurred in this disposition. The trial court confirmed the representations as to identity and age during questioning of defendant. It then stayed the mittimus and continued the matter in order to allow defendant's mother to submit documentation of his age.

While the record is indefinite, the parties are in agreement that the aforesaid convictions were vacated and the cause assigned to the juvenile division of the circuit court. Defendant's brief initially filed in this cause has clearly asserted that he sought the protection of the juvenile court system, and his reply brief suggests this same conclusion.

Under the appropriate statutory procedure, the cause was then transferred to the criminal division of the circuit court (Ill.Rev.Stat.1971, ch. 37, par. 702--7(3)), where defendant was indicated for armed robbery. Thereafter, on April 28, 1971, proceedings were conducted at which defendant's claim of double jeopardy was rejected. The State informed the trial court that it was 'ready to proceed with the stipulated bench trial at this time.' Defendant waived a jury trial, and the assistant State's Attorney recited a stipulation of facts to the effect that defendant and an accomplice entered the victim's place of business, and robbed the victim at gunpoint, taking $200, a pistol and an automobile. Defendant was arrested after he filed from a car, and he voluntarily confessed his participation in the crime. The State concluded that it was further stipulated that 'the facts as presented are sufficient under the law to find the defendant guilty of the crime charged beyond a reasonable doubt.' Defense counsel merely informed the trial court 'at this time (the defense) will rest.' Arguments in aggravation and mitigation were conducted, the trial court rejected the State's recommendation that defendant be incarcerated for a term of two to four years, and judgment was entered from which defendant has appealed.

As set forth in his brief and as substantially amplified during oral argument, we understand defendant's double-jeopardy argument to require that in no case after trial and conviction for a lesser included offense is it proper to vacate that judgment and to subject an accused to prosecution for a greater offense. Alternatively, defendant has suggested that if a trial court may so act in situations similar to this case, then it is incumbent upon that court to warn an accused that retrial is possible and that he may be prosecuted upon a greater offense thereby permitting the accused to intelligently consider whether a waiver of proceedings under pertinent provisions of the Juvenile Court Act (Ill.Rev.Stat.1973, ch. 37, par. 702--7) would be advantageous. Finally, defendant has asserted that under North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, the increased punishment imposed in this case upon retrial of the matter was improper.

Section 2--7 of the Juvenile Court Act (Ill.Rev.Stat.1971, ch. 37, par. 702--7) stated, 'Except as provided in this Section, (no boy) who was under 17 years of age * * * at the time of the alleged offense may be prosecuted under the criminal laws of this State * * *.' The section then details the procedure permitting the removal of the cause from juvenile court jurisdiction by action of the State's Attorney. (Par. 702--7(3).) The section further provides that 'the minor, with the consent of his counsel, may, at any time before commencement of the adjudicatory hearing, file with the (juvenile) court a motion that criminal prosecution be ordered * * *.' (Par. 702--7(5).) It is apparent from an analysis of the applicable statutory provisions that the juvenile court was initially vested with statutory authority to consider the disposition of a minor unless the appropriate procedures were effectuated permitting a juvenile to be criminally prosecuted.

In this instance the defendant's case was first brought before a circuit court judge assigned to the municipal department for the obvious reason that he had misrepresented his age and true identity to the police. At no time prior to the entry of the guilty pleas before this judge did defendant reveal his...

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