No. 46588. Appeal from the Appellate Court for the First
District; heard in that court on appeal from the Circuit Court of
Cook County; the Hon. Wayne W. Olson, Judge, presiding.
No. 46933. Appeal from the Appellate Court for the
MR. JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 24, 1975.
William J. Scott, Attorney General, of Springfield, and Howard L. Hood, State's Attorney, of Murphysboro (James B. Zagel, Jayne A. Carr, and Thomas Connors, Assistant Attorneys General, of Chicago, of counsel), for the People.
Richard E. Cunningham, State Appellate Defender, of Springfield, and Hendricks & Watt, David W. Watt, Jr., Earl S. Hendricks, Jr., and Arnold M. Jochums, all of Murphysboro, for appellees.
In cause No. 46933, defendants, Dorie Weintraub, Yolande Tullar, Terry G. Nelms, Robert Genet, Rima Riszkiewicz, Christopher S. Korch, Herbert Kent and Terry J. Munk, appealed to the appellate court from judgments entered by the circuit court of Jackson County. The appellate court consolidated the cases for opinion, reversed the judgments (People v. Weintraub, 20 Ill. App.3d 1090), and we allowed the People's petition for leave to appeal. In cause No. 46588, defendant, Allen J. Meyerowitz, appealed from the judgment of the circuit court of Cook County. The appellate court affirmed (People v. Meyerowitz, 17 Ill. App.3d 345), and we allowed defendant's petition for leave to appeal. Although separately briefed and argued, the cases have been ordered consolidated for opinion.
Between the dates of August 20, 1970, and October 4, 1971, in the circuit court of Jackson County, the defendants Tullar, Nelms, Genet, Riszkiewicz, Korch, Kent and Munk, represented by retained counsel, and defendant Weintraub, represented by the public defender, entered negotiated pleas of guilty to the charge of illegal possession of marijuana in violation of section 38 of the Uniform Narcotic Drug Act (Ill. Rev. Stat. 1969, ch. 38, par. 22-40). The circuit court imposed the following sentences: Weintraub 2 years' probation and a $500 fine plus costs, payable at the rate of $25 per month; Tullar and Nelms 5 years' probation and a $1,000 fine plus costs, payable $250 within one year and the balance periodically; Genet 5 years' probation and a $1,000 fine plus costs, payable $50 per month; Riszkiewicz 2 years' probation and a $400 fine plus costs; Korch 3 years' probation and a $1,000 fine plus costs, payable $75 per month; Kent 1 year probation and a $250 fine plus costs, payable within 11 months; and Munk 6 months' probation and a $150 fine plus costs, payable within 6 months. Munk's probation was later extended by 6 months, and again by 3 months.
This court in People v. McCabe, 49 Ill.2d 338 (opinion filed October 15, 1971; rehearing denied November 24, 1971), held that a defendant convicted of the illegal sale of marijuana under section 38 of the Uniform Narcotic Drug Act was denied equal protection of the law under the Federal and Illinois constitutions and reversed the conviction. Between July 6, 1972, and March 3, 1973, each of these defendants filed a motion, based on McCabe, asking that his plea of guilty and conviction be stricken, that his probation be terminated, and that any fines and costs paid to the circuit clerk be refunded.
The circuit court ordered the probation of each of the defendants terminated and the payment of the balance due on their fines and costs remitted, but refused to vacate the convictions or order a refund of any part of the fines or costs that had been paid. In denying the relief requested by defendants, the circuit court held (1) that McCabe was not to be given retroactive application, and (2) that defendants had not appealed their convictions and could not collaterally attack the judgments under the provisions of section 72 of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 72), the Habeas Corpus Act (Ill. Rev. Stat. 1973, ch. 65, par. 22), the Post-Conviction Hearing Act (Ill. Rev. Stat. 1973, ch. 38, par. 122-1 et seq.) or the holding of People v. Warr (1973), 54 Ill.2d 487. The appellate court held that McCabe operated retroactively, that defendants' convictions based on an unconstitutional statute were void, and that the trial court had inherent jurisdiction to vacate a void judgment. It affirmed the trial court's termination of the probations and reversed and remanded the cases with directions to grant the other relief requested by defendants.
On October 30, 1970, in the circuit court of Cook County, Allen J. Meyerowitz pleaded guilty to the charge of unlawful possession of marijuana in violation of section 38 of the Uniform Narcotic Drug Act (Ill. Rev. Stat. 1969, ch. 38, par. 22-40). He was placed on 3 years' probation and fined $500, which he began paying at the rate of $15 per month. On April 14, 1972, he filed a motion, based on McCabe, requesting that his conviction be set aside, his probation terminated, and that the $260 he had paid on his fine to the Department of Probation be returned to him with interest. The circuit court set aside the judgment of conviction, terminated the probation and remitted the payment of the balance due on the fine, but it refused to order the refund of $260 that had been paid on the fine, plus interest. The appellate court affirmed the judgment on the ground that the payments on the fine had been made voluntarily by defendant and that he could not now demand a refund.
In the petition for leave to appeal filed in 46933 the People contend that the judgments were not rendered void by reason of McCabe "but are, at the very most, voidable when brought before the Court for review in a proper procedural fashion; namely, by direct appeal, Post Conviction Petition, Habeas Corpus, or relief under Section 72 of the Civil Practice Act. No other remedy is available." In their brief it is contended that "the rule of McCabe should not be given retroactive application to the extent of requiring that refunds be made of fines paid as punishment for pre-McCabe marijuana convictions." They argue that the "McCabe Rule" does not meet the United States Supreme Court criteria for retroactivity for the reason that it "was not designed to protect the integrity of the fact-finding process but, rather, to eliminate the shockingly harsh minimum jail sentence imposed by the Narcotic Drug Act for a first marijuana conviction." The People argue that "McCabe should not be held to be retroactive as to fines because county officials, in good-faith reliance on the presumed validity of the Narcotic Drug Act, collected fines from defendants convicted under the Act and mingled the monies with the general corporate revenues that are expended in the course of official business." Alternatively they suggest that "this court, in the exercise of its supervisory jurisdiction, should hold that defendants who are convicted under statutes subsequently held to be unconstitutional must, in order to recover fines paid on their convictions, file their motions for refunds within four months of the date of the judicial decision that invalidates the convictions."
In their brief in 46588 the People contend that the appellate court correctly held that the payments were voluntarily made and its judgment should be affirmed.
We consider first whether the defendants may properly attack the judgments of conviction in their motions to terminate probation. This court has recognized that considerations of justice and fairness require that an accused who asserts a substantial denial of his constitutional rights in the proceedings in which he was convicted be afforded a procedure by which the challenged proceedings may be reviewed. To that end, in People v. Davis (1968), 39 Ill.2d 325, acknowledging the "obvious advantages in purging oneself of the stigma and disabilities which attend a criminal conviction" (39 Ill.2d 325, 329) we construed the Post-Conviction Hearing Act to permit relief even though the petitioner was no longer incarcerated. In People v. Pier (1972), 51 Ill.2d 96, we held the Post-Conviction Hearing Act applicable not only to the proceeding in which the petitioner's guilt was determined but also to the proceedings in which his probation was revoked. In People v. Warr (1973), 54 Ill.2d 487, we noted the injustice which would result if the defendant were restricted to the "three familiar statutory methods of collateral attack upon a judgment" (54 Ill.2d 487, 491) and in the exercise of our supervisory jurisdiction provided the procedure by which a defendant convicted of a misdemeanor could assert that in the proceedings in which he was convicted he had suffered a substantial denial of his constitutional rights. In People v. Sarelli (1973), 55 Ill.2d 169, on the basis of McCabe, we ordered vacated a judgment of conviction attacked on that ground for the first time in the appeal from the dismissal of a post-conviction petition.
Here the defendants were on probation and the circuit court had continuing jurisdiction of each defendant until his probation was terminated. Section 5-6-2 of the Unified Code of Corrections provides:
"(c) The court may at any time terminate probation or conditional discharge if warranted by the conduct of the offender and the ends of justice." (Ill. ...