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The People v. Shockey





WRIT OF ERROR to the Circuit Court of Winnebago County; the Hon. WILLIAM R. DUSHER, Judge, presiding. MR. JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 1, 1962.

Plaintiff in error, Eugene F. Shockey, hereinafter referred to as defendant, was tried by jury in the circuit court of Winnebago County and found guilty of the crime of larceny of a motor vehicle, for which he was sentenced to the penitentiary for a term of not less than five years nor more than fifteen years. He has sued out a writ of error to review the judgment of conviction, contending that he was prejudiced by the erroneous admission of his confession and the erroneous exclusion of testimony regarding his previous good character, that the evidence was insufficient to sustain the conviction, and that the sentence is void because of indefiniteness.

The People contend that the errors assigned, with the exception of the sufficiency of the sentence, cannot be considered for the reason that such errors can be reached only by reference to the report of proceedings which was not presented, certified or filed within 100 days as required by Supreme Court Rule 65. Ill. Rev. Stat. 1957, chap. 110, par. 101.65.

The record establishes that judgment was entered on January 29, 1959. On August 12, 1960, defendant filed his petition for a transcript of the trial proceedings; on the same day, the court entered an order finding the defendant indigent and requiring a transcript to be furnished as provided by Rule 65-1. Thereafter the report of proceedings was certified to on October 13, 1960, and filed on October 18, 1960. On August 30, 1961, defendant presented to the trial court his verified petition for leave to file the report of proceedings nunc pro tunc as of a date within 100 days of the entry of judgment; this motion was denied by the trial court on October 27, 1961.

Rule 65 of this court governs the time within which the bill of exceptions or report of proceedings shall be filed and provides that it shall be filed, duly certified, with the trial court within 100 days after judgment was entered or within any extension of said period granted within the 100-day period or any extension thereof.

Rule 65-1 provides for an indigent defendant to receive a free transcript of the proceedings upon making a proper showing. (Ill. Rev. Stat. 1957, chap. 110, par. 101.65-1.) It does not purport to relieve a defendant sentenced subsequent to April 23, 1956, from complying with the time requirements — conversely, it specifically charges him with the duty to comply in the following words found in the final sentence of subsection (1): "The original of the transcript shall be filed with the clerk and the copy shall be delivered to the defendant without charge to be presented in due course for certification as provided in Rule 65." (Emphasis supplied.)

This court has repeatedly held that the bill of exceptions or report of proceedings will not be considered where not certified or filed within the required time. (People v. Elmore, 16 Ill.2d 412; People v. Kemp, 396 Ill. 578.) The Supreme Court of the United States was recently confronted with a similar situation in United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.ed.2d 259. There respondents, who had been granted leave to prosecute their appeals in forma pauperis, failed to file their notices of appeal within 10 days after entry of their judgments of conviction as required by Rule 37(a) (2) of the Federal Rules of Criminal Procedure. (18 U.S.C.A.) An affidavit of their counsel showed that respondents intended to appeal but the notices were not filed within ten days because he had never taken a criminal appeal before and he mistakenly assumed that he had thirty days in which to file them. (Robinson v. United States, (D.C. cir.) 260 F.2d 718, 720.) Robinson's affidavit showed that the late filing was due to a misunderstanding as to whether the notices were to be filed by respondents themselves or by their counsel. (361 U.S. 220, 221, 80 S.Ct. 282, 284.) The Supreme Court held that the 10-day limit for the taking of an appeal from a judgment of conviction is mandatory and jurisdictional, and appeals not taken within that time should be dismissed regardless of excuse.

We are of the opinion that the time requirement set out in Rule 65 cannot be enlarged by judicial decision. If a late filing of the transcript of proceedings is to be permitted upon a finding of excusable neglect, such procedure must be effected through the rule-making process. To hold otherwise would produce total uncertainty and confusion. In addition, the question of whether such a procedure should be effected at all presents weighty and conflicting policy considerations which are best resolved through the rule-making process.

Since the questions relating to the sufficiency of the evidence, the propriety of excluding evidence of good character, and the alleged erroneous admission of a confession all require reference to the report of proceedings, we are foreclosed from a consideration of them on this review.

This leaves for our attention only the alleged invalidity of the sentence imposed by the trial court, which was as follows:

"Therefore, it is ordered and adjudged by the Court that the said defendant, Eugene F. Shockey, who is found to be twenty (20) years of age, and is convicted of the crime of Larceny of Motor Vehicle herein, be sentenced to the Illinois State Penitentiary, and it is further ordered and adjudged that the said defendant Eugene F. Shockey be taken from the bar of this Court to the common jail of Winnebago County and from thence by the Sheriff of Winnebago County within ninety (90) days to the Illinois State Penitentiary, and be delivered to the warden or keeper of said penitentiary; and the said warden or keeper is hereby required and commanded to take the body of said defendant Eugene F. Shockey and confine him in said penitentiary, in safe and secure custody, from and after the delivery thereof until discharged by due course of law, to-wit: for the term of not less than five (5) years nor more than fifteen (15) years, subject to the Parole and Pardon Board of the Department of Public Safety.

"The sentences in Criminal No. 9621 and No. 9262, Winnebago County, Illinois, are ordered to run concurrently with the sentence in this cause."

This sentence imposes a definite minimum and maximum, and a fixed place of imprisonment. It is sufficient. The provisions of section 3.1 of the Sentence and Parole Act cited by defendant, have no application to the imposition of sentence by the court, but simply allow the prisoner credit upon his penitentiary sentence for time spent in jail after sentencing and before delivery to the penitentiary, ...

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