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People v. Pankey

OPINION FILED OCTOBER 8, 1981.

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

v.

JEFFREY D. PANKEY, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Saline County; the Hon. MICHAEL J. HENSHAW, Judge, presiding.

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

The State appeals from the order of the circuit court of Saline County dismissing an information charging defendant, Jeffrey Pankey, with aggravated battery. The information was dismissed by the court on the grounds that the prosecution was barred under section 3-4 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 3-4) because defendant formerly had been prosecuted for the same offense. We affirm.

On June 11, 1980, Officer Gary Sadler issued an Illinois citation and complaint, similar in form to the document commonly referred to as a "traffic ticket." The complaint was in the name of the People of the State of Illinois, and it charged defendant with committing aggravated battery in violation of section 12-4 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 12-4). The citation further recited that the offense took place on June 10, 1980, at 11:25 p.m. at the "Denny Residence/RR 2 Hbg.," and in it defendant was directed to appear before the court on or before July 7, 1980. Also printed prominently on the face of the form was: "TO BE CHANGED TO CRIMINAL COMPLAINT." Defendant was arrested and transported to the Saline County jail.

On the same date, June 11, 1980, defendant appeared in court and pleaded guilty to the offense charged in the citation. Although no transcript was made of that proceeding, the envelope containing the court's copy of the citation reflects that defendant was fined $50 and ordered to pay $15 court costs. No representative of the State was present when defendant pleaded guilty and was fined.

On June 12, 1980, the State's Attorney filed an information charging defendant with aggravated battery. The information charged "[t]hat on June 10, 1980, in Saline County, Jeffrey D. Pankey committed the offense of AGGRAVATED BATTERY in that the said defendant in committing a Battery, in violation of Illinois Revised Statutes, Chapter 38, Section 12-3, without legal justification, knowingly caused great bodily harm to Cathy Denny, in that he struck Cathy Denny in the face with his fist in violation of Paragraph 12-4(a), Chapter 38, Illinois Revised Statutes." A warrant for defendant's arrest was also issued June 12, 1980.

Defendant moved to dismiss the information filed June 12, alleging that prosecution was barred by section 3-4 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 3-4). At the hearing on the motion on June 26, 1980, defendant argued that he had pleaded guilty to aggravated battery as charged in the Illinois citation and complaint (cause No. 80-OV-249) and that he had been convicted and fined; therefore, prosecution under the information filed June 12, 1980, was barred on the grounds of double jeopardy. The State urged that the city of Harrisburg did not have a city ordinance covering the offense of aggravated battery; that the State's Attorney, and not a city police officer, is the proper prosecuting officer in Saline County to initiate and try felony prosecutions; that defendant appeared and pleaded guilty without any prosecuting official being present; and, finally, that defendant obtained his conviction through fraud. The trial court took the matter under advisement and on July 7, 1980, held that prosecution under the information filed June 12 was barred by section 3-4 of the Criminal Code of 1961. The State appeals from that order.

On appeal the State contends that: (1) a guilty plea to a felony charged by an Illinois citation and complaint is a void judgment and a nullity and, consequently, is not a conviction barring subsequent prosecution on the grounds of double jeopardy; (2) a prosecution procured by a defendant, without the knowledge of the State's Attorney, for the purpose of avoiding the sentence which otherwise might be imposed cannot stand as a bar to subsequent prosecution; (3) a charge which is insufficient to support a conviction because it fails to allege all the necessary elements of the offense cannot bar a subsequent prosecution instituted by a valid charging instrument; and (4) should the order of the trial court be affirmed, the cause should be remanded for resentencing in compliance with section 5-3-1 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005-3-1).

At the outset we observe that the record does not contain any evidence of fraud on the part of defendant nor does it indicate that defendant procured his own prosecution for the purpose of avoiding the sentence which otherwise might be imposed. Therefore, we reject the State's contention that section 3-4 of the Criminal Code of 1961 was rendered inapplicable for that reason. See Ill. Rev. Stat. 1979, ch. 38, par. 3-4(d)(2).

The State first contends that the proceedings instituted by the Illinois citation and complaint are a nullity and are void because they were not commenced by indictment or information as required by statute.

• 1 Under section 111-2(a) of the criminal code "[a]ll prosecutions of felonies shall be by information or by indictment." (Ill. Rev. Stat. 1979, ch. 38, par. 111-2(a).) Further, as specified in section 111-2(b) of the code, "[a]ll other prosecutions may be by indictment, information or complaint." (Ill. Rev. Stat. 1979, ch. 38, par. 111-2(b).) In the instant case, the offense charged by the citation and complaint constituted a felony; therefore, according to section 111-2(a) of the criminal code, prosecution properly should have been initiated by indictment or information. Section 111-2 of the criminal code, however, is ambiguous in that section 111-2(f) refers to situations where "the prosecution of a felony is by information or complaint." (Ill. Rev. Stat. 1979, ch. 38, par. 111-2(f).) Any confusion resulting from this ambiguity was resolved by the court in People v. Kleiss (1980), 90 Ill. App.3d 53, 412 N.E.2d 39, where the court concluded that the commencement of a felony prosecution by a complaint was a non-jurisdictional error. The defendant in Kleiss raised no pretrial objection to the fact that his prosecution for theft of property valued in excess of $150 was initiated by a criminal complaint; however, he filed a motion in arrest of judgment at the conclusion of his trial, contending that the trial court was without jurisdiction since no information or indictment was filed. The court held that it was not the complaint which conferred jurisdiction on the court. According to the Kleiss court, subject matter jurisdiction was derived from constitutional and statutory provisions, and personal jurisdiction was acquired by the defendant's personal appearance before the court. Therefore, any error in the prosecution of defendant by complaint, rather than by information or indictment, was one of form and not substance. Accordingly, we reject the State's argument that the use of a complaint as a charging document in a felony matter would render the judgment void.

• 2 We also note that the citation and complaint fail to charge all the elements of the offense as required by section 111-3(a)(3) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 111-3(a)(3)), as urged by the State. First, the name of the victim was not alleged, and, second, no specific facts were alleged in support of the charge of aggravated battery. However, the fact that the charging document fails to state an offense does not deprive the circuit court of jurisdiction of the subject matter. (People v. Gilmore (1976), 63 Ill.2d 23, 344 N.E.2d 456.) As stated by our supreme court in Gilmore:

"The jurisdiction of the circuit courts> * * * 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.)

Section 1-5(a) of the code (Ill. Rev. Stat. 1979, ch. 38, par. 1-5(a)) provides that a person is subject to prosecution in Illinois "for an offense which he ...


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