People v. Thompson

• Decision Date: 09 April 1976
• Docket Number: Nos. 61691 and 60792,s. 61691 and 60792
• Citation: 347 N.E.2d 481,38 Ill.App.3d 101
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ernest THOMPSON and Betty Thompson, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 481

347 N.E.2d 481

38 Ill.App.3d 101

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ernest THOMPSON and Betty Thompson, Defendants-Appellants.

Nos. 61691 and 60792.

Appellate Court of Illinois, First District, Fifth Division.

April 9, 1976.

Adam Bourgeois, Chicago, for defendants-appellants; Allan A. Ackerman, Chicago, of counsel.

Bernard Carey, State's Atty., Chicago, for plaintiff-appellee; Laurence J. Bolon and Linda Ann Miller, Chicago, of counsel.

SULLIVAN, Justice.

Defendants were jointly found guilty in a bench trial of the delivery of a controlled substance (heroin, less than 30 grams), in violation of Section 401(b) of the Illinois Controlled Substances Act. (Ill.Rev.Stat.1971, ch. 56 1/2, par. 1401(b).) In this appeal, they do not challenge he sufficiency of the evidence but contend only that the trial court was without jurisdiction to vacate its earlier order granting them a new trial and that, in any event, there was no valid waiver of a jury trial.

The facts are not disputed. Defendants were found guilty on January 31, 1974, and the court continued the matter to March 4, 1974 for post-trial motions and sentencing. On that date, the court Sua sponte vacated its earlier finding of guilt and granted both defendants a new trial, stating as basis therefor, 'On search of my record, there wasn't executed by these defendants a jury waiver.' The case was then reassigned to another judge, before whom defendants moved on two occasions to dismiss on double jeopardy grounds.

While these motions were pending, at the State's request and over the objections of defendants, the case was reassigned back to the original trial judge, before whom on June 6, 1974 the State moved to vacate the order granting a new trial. A hearing was held during which the State presented a transcript of the trial proceeding which had not been available at the time the order was entered. The transcript disclosed that in the presence of both defendants the following colloquy took place:

'THE COURT: Put yourself on record.

MR. LEVITT: Stanford Levitt. And I represent Ernest and Betty Thompson.

MR. HORWITZ: The State is ready for trial at this time.

MR. LEVITT: The defense is ready, if the Court please.

THE COURT: On both of these?

MR. HORWITZ: Yes.

THE COURT: Is there going to be a jury?

MR. LEVITT: Non jury.

THE COURT: Bench trial. We will start as soon as we get through with the call. Are you ready to proceed this morning?'

In addition, it was brought to the attention of the judge that the half-sheet record of the court contained an entry by the clerk that jury trial had been waived.

At the conclusion of the hearing, the judge again stated that the new trial order had been entered because his personal trial notes did not indicate a jury waiver. He then sustained the State's motion and vacated the order granting defendants a new trial, stating that he would not have entered the order had he been aware of the contents of the half-sheet and the transcript. The finding of guilty was reinstated, a pre-sentence investigation ordered and, on July 23, 1974, Ernest Thompson was sentenced to three to four years and Betty Thompson to three years probation.

Defendants initially contend the trial judge was without jurisdiction on June 6, 1974, after a lapse of three months, to vacate his previous order of March 4, 1974, granting a new trial. We recently had occasion to reiterate the settled principle that a trial judge is without authority to alter a final judgment more than 30 days after entry. (People v. Green, 34 Ill.App.3d 153, 340, N.E.2d 58.) However, the law is equally well settled that a trial court retains jurisdiction to modify an interlocutory order. (Leopold v. Levin, 45 Ill.2d 434, 259 N.E.2d 250.) Thus, the resolution of this jurisdictional issue depends upon whether the order granting a new trial was a final judgment. If it was final, the vacatur would be void, as it was entered some 90 days later.

In support of their contention that the trial judge improperly vacated his order, defendants cite a number of cases which stand for the proposition that a court is without jurisdiction to modity a final judgment more than 30 days after entry, or after an accused has begun to serve his sentence. (People v. Lance, 25 Ill.2d 455, 185 N.E.2d 221; Brockmeyer v. Duncan, 18 Ill.2d 502, 165 N.E.2d 294; People v. Drysch, 311 Ill. 342, 143 N.E. 100; People v. Rudecki, 309 Ill. 125, 140 N.E. 832; People v. Dzielski, 130 Ill.App.2d 581, 264 N.E.2d 426.) However, in all of these cases, the attempted modification occurred after the entry of final judgment, and they did not involve orders granting a new trial. Accordingly, these cases are inapposite to the precise issue presented here--whether the order granting a new trial is a final judgment.

Section 5--1--12 of the Unified Code of Corrections (Ill.Rev.Stat.1973, ch. 38, par. 1005--1--12) gives the following definition of 'judgment':

"Judgment' means an adjudication by the court that the defendant is guilty or not guilty, and if the adjudication is that the defendant is guilty, it includes the sentence pronounced by the court.'

This same definition appearing also in section 102--14 of the Code of Criminal Procedure of 1963 (Ill.Rev.Stat.1973, ch. 38, par. 102--14) has been judicially construed as meaning that the judgment of the court is the sentence (People v. Lilly, 56 Ill.2d 493, 309 N.E.2d 1; People v. Becker, 414 Ill. 291, 111 N.E.2d 491; Green; People v. Gamboa, 30 Ill.App.3d 242, 332 N.E.2d 543), and it has been held that an adjudication of guilt absent a sentence is not a final judgment, People v. Mayhew, 18 Ill.App.3d 483, 309 N.E.2d 672.

Here, sentence had not been imposed until after the order granting a new trial had been vacated. Applying the rule that an adjudication of guilt on which no sentence has been imposed is not a final judgment, it would follow that finality had not resulted and, consequently, the 30 day post-judgment limitation period had not commenced when the trial judge rescinded his new trial order. This conclusion is in accord with the result reached in People v. Hammond, 18 Ill.App.3d 693, 695--6, 310 N.E.2d 485, 487, wherein the court stated, 'Obviously, the order for a new trial in this case is not a final judgment in that no sentence was imposed.'

Defendants cite and our research discloses additional cases from other jurisdictions, however, in which it has been held that a trial court is without authority to revoke an order granting a new trial. Several of these cases are factually distinguishable from the instant case, as sentence had been entered and thus the judgment was final even by our own standanrds. (See U.S. v. Spinella (5th Cir. 1975), 506 F.2d 426; Hefton v. State (1934), 206 Ind. 663, 190 N.E.2d 847; Louisiana v. Bullock (1972), 263 La. 946, 269 So.2d 824; Commissioner v. White (1941), 289 Ky. 99, 157 S.W.2d 747.) In one other case (Jones v. State (1907), 51 Tex.Cr.R. 3, 100 S.W. 150), the opinion does not indicate whether sentence had been imposed following conviction. However, the conviction is referred to as a 'judgment' and thus Jones is distinguishable from the instant case where no judgment could be said to have been entered. In Mathis v. State (1899), 40 Tex.Cr.R. 316, 50 S.W. 368, after conviction but before sentencing, the trial court initially granted defendant's motion for a new trial but vacated this order the next day. The appellate court reversed, holding that, based on its interpretation of state...