APPEAL from the Circuit Court of Douglas County; the Hon.
JAMES N. SHERRICK, Judge, presiding.
MR. JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
Defendant William David Garrett was charged by complaint with the offenses of burglary and theft of property in excess of $150 and entered a plea of guilty. Subsequently defendant filed a motion to withdraw the plea, which was denied after a hearing. Judgment was entered on the burglary charge only, and defendant was sentenced to imprisonment for 1 to 3 years.
On appeal defendant contends that (1) his conviction must be reversed because he was charged with felonies by complaint rather than indictment or information and (2) the trial court abused its discretion in refusing to allow him to withdraw his guilty plea.
• 1, 2 We first consider defendant's claim that it was error to prosecute him by complaint. That the charges against him were in the form of a complaint was not challenged by defendant in the trial court, and he concedes that any error was therefore waived unless prosecution of felonies by complaint is a jurisdictional defect which may be raised at any time.
At the time he entered his guilty plea, defendant waived indictment by grand jury and preliminary hearing, thereby waiving any preliminary determination of probable cause. Defendant contends that even under such circumstances felonies cannot be prosecuted by complaint because complaints differ from either indictments or informations in that indictments and informations are process issuing from constitutionally recognized bodies, i.e., the grand jury or the State's attorney, while a complaint may be brought by an individual citizen. Defendant argues that this difference has been recognized in a recent amendment to section 111-2 of the Code of Criminal Procedure (Ill. Rev. Stat., 1975, ch. 38, par. 111-2). Prior to October 15, 1975, section 111-2(a) provided that if indictment by grand jury were waived, felonies could be prosecuted by information or complaint. However, effective that date, section 111-2(a) was amended to provide:
"All prosecutions of felonies shall be by information or by indictment."
While this language would clearly seem to limit the forms for charging felonies to indictments and informations, subsection (e) of section 111-2, which was added by the same amendment, injects some confusion by stating:
"Where the prosecution of a felony is by information or complaint after preliminary hearing, or after a waiver of preliminary hearing * * *, such prosecution may be for all offenses, arising from the same transaction or conduct of a defendant even though the complaint or complaints filed at the preliminary hearing charged only one or some of the offenses arising from that transaction or conduct." (Emphasis added.)
We need not decide whether the statute allows prosecution of felonies by complaint, however, since we rule that even if the statute does not allow felony charges to be brought in the form of a complaint, charging the defendant by complaint in the instant case did not deprive the trial court of jurisdiction. In People v. Gilmore (1976), 63 Ill.2d 23, 344 N.E.2d 456, the supreme court considered the question of whether the trial court lacked jurisdiction because a certain information and indictment charging forgery failed to set forth the payees named in the checks in question. In ruling that there had been no lack of jurisdiction, the court stated that:
"[T]he sufficiency of an information or indictment attacked for the first time on appeal is not to be determined by whether its form follows precisely the provisions of the statute. When attacked for the first time on appeal an information or indictment is sufficient if it apprised the accused of the precise offense charged with sufficient specificity to prepare his defense and allow pleading a resulting conviction as a bar to future prosecution arising out of the same conduct. People v. Grant, 57 Ill.2d 264; People v. Harvey, 53 Ill.2d 585." 63 Ill.2d 23, 29, 344 N.E.2d 456, 460.
In the instant case, defendant is challenging only the form of the charges and not the contents. Therefore, the following statement of the court in Gilmore appears to be at least as applicable to the situation here as to the situation in Gilmore:
"The jurisdiction of the circuit courts> in these cases was not `conferred' by the information or indictment; jurisdiction was conferred by the provisions of section 9 of article VI of the Constitution, which provides that the circuit courts> have `original jurisdiction of all justiciable matters.' The circuit courts> have jurisdiction in all cases involving offenses which fall within the ambit of section 1-5 of the Criminal Code (Ill. Rev. Stat. 1975, ch. 38, par. 1-5 * * *." 63 Ill.2d 23, 26, 344 N.E.2d 456, 458.
We next consider defendant's contention that he should have been allowed to withdraw his guilty plea because he had a defense worthy of consideration by a jury. In support of this contention defendant relies on People v. Jameson (1944), 387 Ill. 367, 56 N.E.2d 790, where the Supreme Court held that the defendant should have been allowed to withdraw his plea of guilty to a murder charge where there was a claim of self-defense and the defendant was young, uneducated, and without counsel at the time of the plea and there was evidence that by pleading guilty the defendant understood that he was merely saying that he had killed the deceased and did not understand that he was pleading guilty to murder with malice aforethought. In so ruling, the court stated:
"The rule has often been announced in this State that permission to change a plea of guilty to one of not guilty is a matter within the discretion of the trial court and this discretion will not ordinarily be disturbed unless it appears that the plea of guilty was entered on a misapprehension of the facts or of law, or in consequence of misrepresentation by counsel or the State's Attorney or someone else in authority, or the case is one where there is doubt of the guilt of the accused, or where the accused has a defense worthy of consideration by the jury and the ends of justice will be better served by submitting the case to a jury. [Citation.] However, if the record of the ...