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People v. Franks





APPEAL from the Circuit Court of Franklin County; the Hon. F.P. HANAGAN, Judge, presiding.


Pursuant to plea negotiations, defendants, James W. Franks and Walter Branch, both pleaded guilty to the offense of burglary in the circuit court of Franklin County. It was agreed that sentences would be imposed after an adversarial sentencing hearing. Following such hearing, the court on June 1, 1976, entered orders committing defendants to the Illinois Department of Corrections. Defendant Franks was sentenced to a term of two to six years, such term to run consecutively with several prior sentences of imprisonment. Defendant Branch was sentenced to a term of one to three years.

After defendants became aware of the fact that the clerk of the court had erroneously filed notices of appeal in their cases, they filed two post-trial motions. One motion, denominated "Motion for New Trial," was filed June 25, 1976. A motion to withdraw plea of guilty was filed by each defendant on June 30, 1976. The State filed objections to both motions. Both motions were denied by the court on July 26, 1976. Defendants appeal.

In this appeal, defendants assert that their convictions must be reversed because they were charged with this burglary by means of an information rather than an indictment. They contend that the retroactive application in their cases of an amendment to section 111-2(a) of the Code of Criminal Procedure (Ill. Rev. Stat. 1975, ch. 38, par. 111-2(a)) which allows the State to initiate prosecutions of felonies by either information or indictment violates the constitutional prohibition against ex post facto legislation and contravenes principles of statutory construction.

The facts relevant to this contention are as follows. The burglary of which these defendants stand convicted occurred on September 26, 1975. They were initially charged by information with this burglary on September 29, 1975; however, an amended information was filed October 8, 1975, charging them with burglary and felony theft. All subsequent proceedings were based upon the October information. At the time of the offense's commission and the filing of the initial information, section 111-2(a) (Ill. Rev. Stat. 1975, ch. 38, par. 111-2(a)) provided that all felony prosecutions be commenced by indictment. On October 1, 1975, an amendment to this provision became effective which provided that: "All prosecutions of felonies shall be by information or by indictment. * * *." The gist of defendants' argument is that they could not be charged by information because the offense was committed prior to the effective date of the amendment.

Defendant Franks makes the additional contention that the trial court erred in imposing a consecutive rather than concurrent sentence upon him because there is no basis for the finding that a consecutive term was necessary to protect the public from further criminal conduct by him.

Initially, we must address the State's contention that defendants' motions to withdraw guilty pleas were not filed within the 30 day limitation period of Supreme Court Rule 604(d) (Ill. Rev. Stat. 1975, ch. 110A, par. 604(d)) and that, therefore, this appeal should be dismissed. People v. Stojetz, 46 Ill. App.3d 205, 360 N.E.2d 1139.

• 1 The sentencing hearing was conducted on May 26, 1976; however, the docket minutes for that hearing clearly indicate "judgment to be entered." On June 1, 1976, the written judgment and sentence orders were filed and mittimuses were issued. This was the date on which the sentences were imposed; therefore, the 30-day period for filing a motion to withdraw pleas is computed from June 1, 1976. (Cf. People v. Allen (5th Dist. 1977), 49 Ill. App.3d 108, 363 N.E.2d 892.) The motions of defendants were both filed within such period. Accordingly, they were timely filed.

The State next contends that defendants have waived the issue concerning the propriety of their being charged by information under the rule that all prior defects and irregularities in a proceeding which are not jurisdictional are waived by a voluntary plea of guilty (People v. Mahle, 57 Ill.2d 279, 312 N.E.2d 267), including constitutional questions (People v. Brown, 41 Ill.2d 503, 244 N.E.2d 159). In anticipation of this argument, defendants argue that this issue cannot be waived by a plea of guilty because it is an issue involving the jurisdiction of the court. We agree with the State.

• 2, 3 Our examination of the record reveals that defendants' plea proceedings were in compliance with Supreme Court Rule 402 (Ill. Rev. Stat. 1975, ch. 110A, par. 402). The motion of each defendant to withdraw his plea of guilty alleges "that the plea of guilty was entered improvidently, without proper advice of counsel, and without understanding the nature of the charge, the effect of the plea or his rights." The defendants did not prove this allegation, and the record stands in direct contradiction to this assertion. Under these circumstances, we must find defendants' pleas intelligently and voluntarily made and conclude that the trial court has not abused its discretion in refusing to permit defendants to withdraw their pleas. Accordingly, defendants have waived all prior issues other than those which are jurisdictional. We also find that defendants' issue concerning the instrument used to charge them is not jurisdictional and, hence, waived for purposes of appeal.

In People v. Garrett, 46 Ill. App.3d 592, 360 N.E.2d 1231, a defendant who had been charged with burglary by complaint and had been convicted after pleading guilty contended that he could not be charged with a felony by complaint. The court found that even if the statute (Ill. Rev. Stat. 1975, ch. 38, par. 111-2(a)) did not allow felony charges to be brought by complaint, defendant had waived the issue because charging the defendant by complaint did not deprive the trial court of jurisdiction. The court found the following statement of our supreme court from People v. Gilmore, 63 Ill.2d 23, 344 N.E.2d 456, to be applicable to the case since defendant was challenging only the form of the charges:

"`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." 46 Ill. App.3d 592, 594.

In Gilmore the court reached the above quoted conclusion while ruling that the trial court did not lack jurisdiction because a certain information and indictment charging forgery failed to set forth the payees named in the checks in question (63 Ill.2d 22, 26-27). The court also found that since the indictment and information were challenged for the first time on appeal, they were sufficient if they apprised defendants of the precise offense charged with sufficient specificity to prepare their defenses and allow pleading a resulting conviction as a bar to future prosecution arising out of the same conduct (63 Ill.2d 22, 29). We believe these cases compel us to deem defendants' issue concerning the instrument used to charge them to be waived.

• 4 Even if we were to decide defendants' contentions on their merits, we would rule against defendants. In People v. Vaughn, 49 Ill. App.3d 37, 363 N.E.2d 879, this court adopted the rationale of People v. Myers (3d Dist. 1977), 44 Ill. App.3d 860, 359 N.E.2d 197, and People v. Tibbs (4th Dist. 1977), 46 Ill. App.3d 310, 360 N.E.2d 993, and found both of these contentions to be without merit in a factual situation indistinguishable from that presented here. This decision is controlling of the merits of defendants' contentions. As stated there, the amendment to section 111-2 of the Code of Criminal Procedure, as applied in this case, does not involve a prohibited ex post facto law since "`[t]he change here was solely one of procedure, which did not deprive the defendant of any substantive right or defense available at the time of the commission of the offense.'" (49 Ill. App.3d 37, 38, 363 N.E.2d 879, 880.) Similarly, the retroactive application ...

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