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People v. Pruitt

OPINION FILED DECEMBER 2, 1976.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

MARTY PRUITT, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Vermilion County; the Hon. FRANK J. MEYER, Judge, presiding.

MR. PRESIDING JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

Mr. PRESIDING JUSTICE TRAPP delivered the opinion of the court:

Defendant appeals his conviction for the offense of escape (Ill. Rev. Stat. 1975, ch. 38, par. 31-6(a)). Defendant was found guilty upon a jury verdict and sentenced to two to six years imprisonment.

The indictment charged that defendant had escaped on March 9, 1975, "in that he being then and there convicted of a felony, to-wit: armed robbery, did intentionally escape from the Vermilion County jail." On March 7, two days prior to the alleged escape, a jury returned a verdict of guilty of armed robbery and judgment was entered on that verdict.

Defendant argues that the cause should be reversed by reason of a fatal variance between the charge and the proof in that at the time of the escape defendant had not yet been sentenced for the offense and a conviction is not final until sentence has been imposed.

Section 31-6(a) of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, par. 31-6(a)) provides:

"(a) A person convicted of a felony, or charged with the commission of a felony who intentionally escapes from any penal institution or from the custody of an employee of that institution commits a Class 2 felony."

While a conviction is not final for purposes of appeal until sentence is imposed, that is not the issue here.

Sections 2-5 of the Criminal Code and 5-1-5 of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, pars. 2-5 and 1005-1-5) each define conviction:

"`Conviction' means a judgment of conviction or sentence entered upon a plea of guilty or upon a verdict or finding of guilty of an offense, rendered by a legally constituted jury or by a court of competent jurisdiction authorized to try the case without a jury." (Emphasis supplied.)

In People v. Johnson (1975), 34 Ill. App.3d 38, 40, 339 N.E.2d 325, 327, it is said:

"The word `or' in the statute must be accorded significance; whenever this disjunctive is used, the members of the sentence it connects are to be taken separately."

Here, the use of the disjunctive "or" indicates a legislative intent that conviction had occurred when a judgment is entered upon a jury verdict by the trial court. The fact that the statutory offense applies equally to one simply charged with a felony who escapes from a penal institution negates a legislative intent that the offense defined requires a final appealable judgment to be proved as an element.

In this case the evidence showed that the jury had returned a verdict of guilty for the offense of armed robbery and that judgment had been entered upon such verdict, and ...


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