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People v. Nordstrom

JULY 13, 1966.




Appeal from the Circuit Court of Lake County; the Hon. PHILIP YAGER, Judge, presiding. Judgment affirmed.


Rehearing denied August 31, 1966.

The defendant, Albert Edward Nordstrom, was convicted on July 29, 1964, for misbranding drugs, in that he knowingly and unlawfully sold a dangerous drug at retail without a prescription, contrary to the provisions of sections 17 and 29 of the Uniform Drug, Device and Cosmetic Act. (Ill Rev Stats 1963, c 111 1/2, pars 417 and 429.) The offense was a second offense, yet the defendant was placed on probation on August 12, 1964. On April 30, 1965, his probation was revoked; he was sentenced to the penitentiary for a term of not less than one year and six months and not more than two years; and he filed notice of appeal on April 30, 1965, to review both the original judgment of guilty and the order revoking probation.

The State contends that the defendant has lost the right to review his original judgment by failure to file a notice of appeal therefrom within thirty days after August 12, 1964 — the date the probation was granted. This threshold question will be first considered.

The pertinent sections of the Criminal Code provide:

"The judgment of guilty entered prior to the admission of defendant to probation shall be a final judgment subject to review under Article 121 of this Code."

"If the defendant is admitted to probation a judgment of guilty shall be entered."

Sections 117-1(d) and 118-1(d) of the Code of Criminal Procedure of 1963 (Ill Rev Stats 1963, c 38, pars 117-1 (d) and 118-1(d)).

The procedures for review under article 121 of the Code were in part superseded and replaced by Supreme Court Rule 27 (Ill Rev Stats 1965, c 110, par 101.27) which became effective in its final form on January 1, 1964. Supreme Court Rule 27(7) (a) provides:

"Appeals from the trial court shall be perfected within 30 days from the entry of the order or judgment from which the appeal is taken, provided that if the appellant applies for probation or files a motion for a new trial or in arrest of judgment, the appeal shall be perfected within 30 days after the ruling of the court on the petition for probation or the denial of the motion. Except as provided in the next paragraph, no appeal may be taken from a trial court to a reviewing court after the expiration of 30 days from the entry of the order or judgment from which the appeal is taken." (Emphasis ours.)

Subparagraph (b) of Rule 27(7) provides for an appeal after the expiration of 30 days and within 14 months from the entry of the judgment or order appealed from, upon the filing of a petition within one year from the entry of such order of judgment, which petition must show a meritorious claim and the absence of culpable negligence in the failure to prosecute the appeal within 30 days. No such petition was filed and it is not claimed that defendant is before this court under the provisions of this subparagraph.

There has long been confusion as to whether and when an appeal will lie if probation is granted. Prior to the adoption of the present Criminal Code, it was thought that the granting or denying of probation to an accused rested solely in the discretion of the trial court (The People v. Stover, 317 Ill. 191, 196, 197, 148 N.E. 67 (1925)); that upon the entry of an order for probation, the cause stood continued in the trial court during the probationary period and a reviewing court was without jurisdiction to hear any phase of the matter (The People v. Mayfield, 414 Ill. 146, 148, 111 N.E.2d 164 (1953)); and that the defendant had waived his right to appeal a conviction if he accepted probation (Committee Comments, SHA ch 38, § 117-1). Such views were finally put to rest in 1965 by the decision in The People v. Sims, 32 Ill.2d 591, 593, 208 N.E.2d 569 (1965). Presently an appeal will lie from the original judgment of conviction after probation is granted, and from an order revoking probation, if perfected according to the provisions of applicable statutes and court rules. The issues are separate and independent. An accused should not be coerced into waiving an appeal by accepting probation.

[2-4] As to when the time for an appeal starts to run, there likewise has been uncertainty. In the absence of a statute providing otherwise, an appeal will lie only from a final judgment. The Village of Niles v. Szczesny, 13 Ill.2d 45, 48, 147 N.E.2d 371 (1958); Eva Peach, etc. v. Lester Peach, et al., 73 Ill. App.2d 72, 218 N.E.2d 504 (2nd Dist 1966); 24 CJS, Criminal Law, § 1643, page 240. In criminal cases, the sentence, in the legal sense, is usually treated as synonymous with final judgment. The People v. Becker, 414 Ill. 291, 295, 111 N.E.2d 491 (1953). In Illinois, it has been the practice, both prior to the adoption of the Code (The People v. Collins, 353 Ill. 468, 471, 187 N.E. 450 (1933); The People v. Andrae, 295 Ill. 445, 454, 129 NE 178 (1920)) and under the Code (Ill Rev Stats 1965, c 38, § 118-1(d)), to grant probation before sentence is imposed. If the defendant is admitted to probation, sentence is not then imposed.

This has led to the contention that if probation is granted there is no final judgment from which an appeal will lie and, hence, the period for appealing a conviction cannot start to run until sentence is imposed. In Toyosaburo Korematsu v. United States, 319 U.S. 432 (1943), the Supreme Court considered the question. Previously in Berman v. United States, 302 U.S. 211 (1937) it had decided that an appeal would lie where sentence had been imposed but was suspended, and the defendant placed on probation. There was language in Berman, however, which indicated that the court accepted the proposition that in a criminal case the sentence ...

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