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People v. Heil





APPEAL from the Circuit Court of St. Clair County; the Hon. JOHN J. HOBAN, Judge, presiding.


Defendant, Sterling Heil, was charged by indictment filed in the circuit court of St. Clair County with the offense of unlawful delivery of a controlled substance. Following a bench trial, defendant was found guilty as charged and was sentenced to three years probation and fined $500. From the judgment entered by the trial court defendant brings this appeal.

On appeal defendant contends that his conviction should be reversed since the court had entered, prior to trial, an order dismissing the indictment and discharging defendant and that thereafter the court improperly readjudicated the matter and vacated the order.

The pertinent facts in this case are that following defendant's indictment, he made a demand for a speedy trial on February 28, 1974. On October 23, 1974, defendant filed a "petition for discharge based on statutory right for speedy trial." Defendant alleged in the petition that more than 160 days had passed since his demand for a speedy trial, that he had not been brought to trial, and that he had not caused any delay of the trial. On that same date, the trial court entered an order that:

"This cause be dismissed for failure of the state to bring defendant to trial within the time allowed under the provision of Ch. 38 § 103-5, I.R.S. Defendant's bond, less statutory fee to be refunded to defendant's counsel George R. Ripplinger, Jr".

The record shows that the State had been present at the hearing on defendant's motion. On the following day, October 24, 1974, the State filed a "motion to set aside and expunge order granting defendant's petition for discharge." In the motion the State alleged various facts which it claimed showed that delay had been caused by defendant. On October 25, 1974, two days after the court entered the order discharging defendant, defendant's bond was terminated and the county clerk issued a check refunding the bond, less court costs, to defendant's attorney. Thereafter, on October 29, 1974, a hearing was held on the State's motion and argument was had by both the State and defendant. An order was then entered overturning the prior order and setting the case for trial.

On appeal, defendant contends that at the hearing on the State's motion, the trial court improperly made a redetermination of whether defendant's statutory right to a speedy trial had been violated. Defendant argues that the prior discharge order which had been entered was an appealable order and that as such, a review of that order at the trial court level was error. The State responds by contending that the trial court retained jurisdiction over its order for 30 days after the entry thereof and may vacate a judgment within that time upon a showing of good cause. To this defendant replies that during the 30-day period a trial court only retains jurisdiction over an "unexecuted" judgment. Defendant then contends that his release from the obligations of his bail constituted an execution of the discharge order, thus, thereafter depriving the trial court of jurisdiction over the case. Moreover, defendant argues, the motion filed by the State to vacate the discharge order did not effect an extension of the court's jurisdiction since the State had not requested nor obtained a stay of the execution of the order. Defendant therefore concludes that the trial court was without jurisdiction when it attempted to vacate its discharge order four days after the execution thereof.

We are thus presented with two questions in this appeal: (1) whether the trial court had jurisdiction to entertain the State's motion to vacate the discharge; and (2) if so, whether the trial court committed error in readjudicating the matter in controversy after it had entered an appealable order of discharge and the State had not appealed that order.

• 1 In arguing that the trial court was without jurisdiction at the time it entered the order vacating the discharge order, defendant relies by analogy on the rule that once a person has been sentenced and delivered to the proper officers under a penitentiary mittimus, the trial court loses jurisdiction at once and is thereafter without the power to modify its judgment. (See, e.g., People v. Wakeland, 15 Ill.2d 265, 154 N.E.2d 245; People v. Hamel, 392 Ill. 415, 64 N.E.2d 865.) *fn1 Defendant argues that if the commencement of a sentence constitutes the execution of a judgment of guilt from which arises a concomitant loss of jurisdiction, then a release from the obligations of bail should constitute an "execution" of an order of discharge from which should also arise a concomitant loss of jurisdiction.

• 2 At issue is the jurisdiction of the trial court over the subject matter of the cause. Under the provisions of section 9 of article VI of the Illinois Constitution of 1970 (Ill. Const. 1970, art. 6, § 9) circuit courts> "shall have original jurisdiction of all justisdiable matters." In criminal cases, the circuit courts> have subject matter jurisdiction over all offenses so long as there exists the necessary nexus between the case and the State as provided in section 1-5 of the Criminal Code (Ill. Rev. Stat. 1975, ch. 38, par. 1-5). (People v. Gilmore, 63 Ill.2d 23, 344 N.E.2d 456.) Once such jurisdiction attaches it continues until there is a final disposition or determination of the case in accordance with the law. (22 C.J.S. Criminal Law § 165 (1961); see People v. Gilmore; People ex rel. Sepanek v. Craine, 28 Ill. App.3d 1075, 329 N.E.2d 852.) Upon a final disposition or determination, the general rule is that the jurisdiction of the court terminates after 30 days following the entry thereof. People v. Lance, 25 Ill.2d 455, 185 N.E.2d 221; People v. McCloskey, 2 Ill. App.3d 892, 274 N.E.2d 358; see generally Ill. Rev. Stat. 1975, ch. 110A, pars. 604(d) and 606(b).

• 3 In the case at bar, defendant relies on an exception to the general rule and he would have us broaden that exception in order to encompass the instant facts. This we decline to do.

In People v. Lance, 25 Ill.2d 455, 185 N.E.2d 221, the defendants moved to dismiss their indictment for want of prosecution and their motion was granted. Six days later, the defendants moved to vacate the order of dismissal and to reinstate the indictment. This motion was also granted and the defendants then pleaded guilty to the charge. On appeal, the defendants contended, as does defendant in the case at bar, that the trial court was without jurisdiction to vacate its prior order of dismissal since that order was an "executed judgment" within the ambit of the exception to the general rule. Our supreme court, after noting the general rule and its limited exception, stated that:

"[We] see no reason to stretch the exception to the normal rule to embrace this case." (25 Ill.2d 455, ...

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