APPEAL from the Circuit Court of La Salle County; the Hon.
THOMAS R. FLOOD, Judge, presiding.
MR. JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
This is an appeal from a denial by the Circuit Court of La Salle County of a petition for writ of habeas corpus by James Housby. Petitioner, James Housby, was incarcerated in the State Penitentiary at Joliet, Illinois, serving a term of 3 to 9 years on a conviction for burglary in the same Circuit Court of La Salle County on May 23, 1973, following a jury trial. This court recently affirmed the conviction and sentence on a direct appeal by Housby (see People v. Housby, 26 Ill. App.3d 92, 324 N.E.2d 465.) The facts involved in the burglary are fully stated in that opinion.
The petition for habeas corpus filed by Housby in the instant case attacked the jurisdiction of the Circuit Court of La Salle County to enter the conviction and sentence for burglary on the ground that there was no formal charge by way of indictment, information or complaint in existence against Housby.
From the record it is shown that on February 14, 1972, Housby was indicted by a La Salle County grand jury on counts of burglary and grand theft in Indictment No. 72-2-206CF. He was indicted at the same time on the same charges along with two accomplices there named, Lorraine Moreno and David Seibach, in Indictment No. 72-2-205CF. On August 2, 1972, the joint Indictment No. 72-2-205CF was nolle prossed, apparently as to all three defendants, and presumably for the reason that Moreno and Seibach had agreed to plead guilty to the theft charge, which they did.
On August 10, 1972, a judge of the Circuit Court entered a pretrial order in Case No. 72-2-206CF. In that order, the trial court recited at length that the particular case, 72-2-206CF, was set for jury trial in October 1972. The same order also ordered petitioner Housby to file all pretrial motions by August 31, 1972. The order also set a pretrial hearing on September 5, 1972, on all pending motions and any plea discussions. The order also required that both parties comply with all discovery and pretrial orders by August 31, 1972. Then, at the end of the same order, unaccountably, there is a recital, that "at the People's motion cause No. 72-2-206CF is nolle prossed."
Following numerous motions and hearings, trial was finally had in case No. 72-2-206CF in May 1973, which resulted in conviction and sentence of petitioner Housby. He unsuccessfully appealed such case and now attacks the proceedings collaterally, as herein stated. The petition in his cause was filed on July 8, 1974, and in such petition it is argued that the final sentence of the August 10, 1972, pretrial order nolle-prossed the case and deprived the court of jurisdiction, since no valid indictment or other formal charge remained in existence. The State filed objection to the habeas corpus petition and recited in such document that it requested that the Circuit Court correct the record to reflect the fact that on August 10, 1972, it was Indictment No. 72-2-205CF and not No. 72-2-206CF which was being nolle-prossed. The court was asked specifically to:
"(1) correct the record to reflect that on August 10, 1972, Indictment No. 72-2-205CF, not Indictment No. 72-2-206CF was nolle-prossed; and
(2) deny the petition for writ of habeas corpus."
On July 11, 1974, the judge who had presided in the earlier proceeding and entered the order now in question, entered the following nunc pro tunc order in that case:
"On the Court's own motion, it is hereby ordered, adjudged and decreed: that the pre-trial order heretofore entered herein by this court is amended nunc pro tunc, as of the date of its entry, to-wit: August 10, 1972, so as to read in Paragraph 5 thereof:
5. That on motion of the State's Attorney's office of La Salle County, indictment No. 72-2-205CF is hereby nolled prossed, such error or mistake in previous order being apparent from other entries in the same record, from the pleadings and files in the said cause, and to conform to the fact."
Thereafter, on July 11, 1974, the same day, a habeas corpus hearing was held at which the nunc pro tunc order was noted as part of the criminal record in the case. After hearing arguments from counsel and some testimony, the court gave petitioner's counsel more time to prepare a memorandum of law. The Circuit Court of La Salle County on August 6, 1974, denied the petition for habeas corpus. In addition thereto, in response to a petition for rehearing and an argument on August 30, 1974, the court again denied the habeas corpus petition and upheld and confirmed the nunc pro tunc order.
• 1, 2 Certain principles involved in a proceeding of the nature before us are clear. As stated in People v. Moats (3rd Dist. 1972), 8 Ill. App.3d 944, 947, 291 N.E.2d 285:
"Before a court can acquire jurisdiction in a criminal case the accused must be charged with a crime by a formal and sufficient accusation and there can be no trial, conviction or punishment for a ...