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People v. Barker

OPINION FILED NOVEMBER 27, 1974.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,

v.

JIMMY E. BARKER, APPELLEE. — THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,

v.

STEVEN MILLER, APPELLEE. — THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,

v.

JOHN MCCUTCHEON, APPELLEE.



No. 46238. — Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of McLean County; the Hon. Wayne C. Townley, Judge, presiding. No. 46239. — Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of McLean County; the Hon. Wayne C. Townley, Judge, presiding. No. 46240. — Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Livingston County; the Hon. George Kay, Judge, presiding.

MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:

We allowed leave to appeal in these cases in which each defendant made a motion for summary disposition after the record had been filed in the Fourth District Appellate Court, but before any briefs had been filed. In each case, the court granted the motion. An order was entered in each of the cases but no opinion was written.

The three cases that are before us present differing situations. As to two of them (Jimmy Eugene Barker and Steven Miller), the question involved is the duration of imprisonment. In both of these cases the defendants, if their contentions were sustained, were eligible for consideration for parole. In each of these cases the appellate court entered an order which provided for the issuance of an amended mittimus reflecting sentence credit for time served on probation. The third case (John McCutcheon), involved an alleged violation of Supreme Court Rule 402 in connection with the acceptance of a plea of guilty. In this case the appellate court vacated the judgment of conviction, set aside the defendant's guilty plea and remanded the cause to allow the defendant to plead anew.

The State does not question the merits of the issues raised by the defendants in their motions for summary disposition. It argues only that the procedure used was improper, contending that the appellate courts have no authority to grant motions for summary disposition, and in the alternative, if the appellate courts do have the authority, the procedure is unfair and improper.

Section 16 of article VI of the Constitution, which deals with the administration of the judicial system, states: "The Supreme Court shall provide by rule for expeditious and inexpensive appeals." There is no supreme court rule which deals directly with the authority of an appellate court to decide cases upon motions for summary disposition. There are, however, two rules that bear tangentially upon the problem. Rule 23 (50 Ill.2d R. 23) provides that an appellate court may use signed memorandum opinions in affirming judgments in certain specifically described situations. It may do so only when it has determined (1) that no error of law appears, (2) that an opinion would have no precedential value and (3) that any one or more of four enumerated circumstances exists and is dispositive of the case. The last sentence of Rule 23 states:

"In the memorandum opinion the Appellate Court shall state at least the following: the court from which the appeal comes; the nature of the proceedings below, i.e., bench trial, jury trial, administrative review, etc.; the nature of the case, e.g., personal injury or contract suit; and such other matters as in the judgment of the court are necessary for an understanding of the case; and shall thereupon, with a minimum of discussion, affirm, indicating that the affirmance is in compliance with this rule."

From this rule it appears that an appellate court must prepare a formal opinion whenever it reverses a judgment or whenever the case does not fall within the conditions of Rule 23. The existence of this requirement strongly implies that an appellate court may not summarily dispose of a case on the merits by written order without the benefit of briefs or oral argument.

Rule 302(c) (50 Ill.2d R. 302(c)) provides:

"(c) Summary Disposition. The Supreme Court, after the briefs have been filed, may dispose of any case without oral argument or opinion if no substantial question is presented or if jurisdiction is lacking."

The presence of an express rule concerning summary dispositions in the supreme court, coupled with the absence of any similar rule relating to appellate courts, rather clearly implies that the appellate courts have no such authority.

The defendants have argued that the supreme court has in the past summarily disposed of cases on motions without requiring briefs or oral argument. It is true that in People v. Boyer (1974), Gen. No. 46619, and People v. Wilson (1974), Misc. No. 6255 (not reported), orders granting defendants' motions were entered before briefs were filed. The orders in those cases, however, expressly state that they are entered in the exercise of the supervisory jurisdiction conferred upon the supreme court by section 16 of article VI of the Constitution. No such jurisdiction has been conferred on the appellate courts.

Section 121-11 of the Code of Criminal Procedure of 1963 provided:

"(a) At the election of a defendant an appeal shall be heard in the reviewing court without written briefs. Election to proceed under this Section shall be made by a defendant on or before the day when his brief is due by filing with the clerk of the reviewing court and serving upon the appellee a notice of such election in the form of a concise statement of the theory of his case on appeal. The State may then file a concise statement of the theory of its case or it may file briefs.

The concise statement of the theory of the case on appeal shall be contained in one typewritten copy not more than 2 ...


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