Appeal from the Circuit Court of McLean County; the Hon. Ivan
D. Johnson, Judge, presiding.
JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:
Defendant was charged by information in the circuit court of McLean County with the offense of battery in violation of section 12-3 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 12-3) in that he made a physical contact of an insulting or provoking nature upon a named female. He waived his right to jury trial and was found guilty at bench. He was sentenced to a fine of $100. Thereafter defendant filed a motion for modification of sentence in which he alleged that the trial court was in error in not considering supervision as a disposition in accordance with section 5-6-1(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005-6-1(c)) (the UCC). The court denied the motion and this appeal ensued.
At issue is our opinion in People v. Bodine (1981), 97 Ill. App.3d 42, 422 N.E.2d 256, wherein it was held that supervision is available only to such defendants as plead guilty or enter into a stipulation in accordance with section 5-6-1(c) of the UCC, not to defendants who stand trial. The trial court held that it was bound by Bodine; defendant argued there, and here, that Bodine was erroneously decided and asks us to reconsider. He further argued in the trial court, and here, constitutional issues: that Bodine, as decided, is a violation of due process and equal protection.
• 1 We disagree. Bodine was properly decided and we take this opportunity to elaborate upon it.
The legislative history of section 5-6-1(c) is helpful in reviewing what the General Assembly was attempting to do, but we find that the effort was abortive. The supreme court in People v. Breen (1976), 62 Ill.2d 323, 342 N.E.2d 31, held supervision as a penalty to be illegal since it had no statutory basis. In reaction to this decision at least 10 bills were introduced at the spring 1976 session of the General Assembly. Two of them are the principal vehicles for this discussion: House Bill 3954 and Senate Bill 1997. It should also be noted that the main controversies, as shown from the debates, revolved about two issues: (1) who should be eligible for supervision, felons, misdemeanants, traffic offenders, and what class of each; and (2) whether the consent of the State's Attorney was required. Little attention was paid to the procedural aspects.
As it now stands, the statute states in pertinent part:
"The court may, upon a plea of guilty or a stipulation by the defendant of the facts supporting the charge or a finding of guilt, defer further proceedings and the imposition of a sentence, and enter an order for supervision * * *." (Ill. Rev. Stat. 1981, ch. 38, par. 1005-6-1(c).)
For purposes of the instant discussion, it must be borne in mind that the phrase "plea of guilty or" was added to the statute by Public Act 80-810, Senate Bill 228, approved September 20, 1977. This occurred after the events described hereinafter concerning House Bill 3954 and Senate Bill 1997, which occurred in June 1976.
Defendant argues that the statute provides three situations in which supervision is available: (1) plea of guilty, (2) stipulation of facts supporting the charge, or (3) after a finding of guilty at trial. In Bodine we held that the third alternative was not authorized by the statute.
Senate Bill 1997, as originally drafted and introduced, provided:
"Whenever a person pleads guilty or is found guilty of any offense * * * the court may, without entering a judgment of guilty, place such person under court supervision * * *."
At this juncture the legislation is clearly following the pattern set by section 410(a) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1981, ch. 56 1/2, par. 1410(a)), which provides in pertinent part:
"Whenever any person * * * pleads guilty to or is found guilty of possession * * *, the court, without entering a judgment * * * may sentence him to probation."
This is the normal pattern for the compassionate statutes which allow an accused person to accept punishment and at the same time maintain a clear record. The judgment of the court is the critical factor; by without holding judgment there is no adjudication of guilt. This is clearly spelled out in the Unified Code of Corrections:
"`Judgment' means an adjudication by the court that the defendant is guilty or not guilty, and if the adjudication is that the defendant is guilty, it includes the sentence pronounced by the court." Ill. Rev. Stat. 1981, ch. 38, par. 1005-1-12.
The supreme court has repeatedly held that the final judgment in a criminal case is the sentence. (People v. Becker (1953), 414 Ill. 291, 111 N.E.2d 491; People v. Rose (1969), 43 Ill.2d 273, 253 N.E.2d 456; People ex rel. Filkin v. Flessner (1971), 48 Ill.2d 54, 268 N.E.2d 376; People v. Warship (1974), 59 Ill.2d 125, 319 N.E.2d 507.) It has further held that a judgment without a sentence is a nullity and must be vacated. People v. Lilly (1974), 56 Ill.2d 493, 309 N.E.2d 1.
Since the compassionate statute bypasses this procedure, it is essential that this be spelled out with particularity. Judgment and sentence are intimately linked; judgment without sentence is a nonentity (Lilly), and too long delay between judgment and sentence will deprive a court of jurisdiction (Breen; People ex rel. Boenert v. Barrett (1903), 202 Ill. 287, 67 N.E. 23); by extension of logic, a sentence without a judgment is likewise inoperative. Any irruption of this pattern is a legislative prerogative (Breen), but must be accomplished with great care.
The Senate passed the bill in its initial form as set forth above. If it had so remained, there could be no doubt that supervision would be an available option after trial. In fact, an amendment was offered in the Senate which would eliminate supervision after trial and it was defeated.
In the House a quite different approach was being taken. House Bill 3954, as originally introduced, provided:
"The court may, with the consent of the defendant and the appropriate prosecuting authority, upon a stipulation by the defendant of the facts supporting the charge or a finding of guilt, defer further proceedings and the imposition of a sentence, and enter an order for supervision * * *."
When the bill was reported out of committee, the language providing the predicate for supervision was deleted and the bill then stated:
"The court may, with the consent of the defendant and the appropriate prosecuting authority, defer further proceedings and the imposition of a sentence, and enter an order for supervision * * *."
Debate then followed and Amendment No. 1 was introduced which inserted after the word "authority" the words "upon a plea of guilty by the defendant or a finding of guilt." This amendment was tabled and Amendment No. 2 was offered and adopted which restored the original language of the bill as introduced. This was the final version as adopted by the House.
All of the House action came in the form of an amendment to Senate Bill 1997. The matter was then referred to a conference committee which recommended that the House recede from its amendment and that Senate Bill 1997 be amended. The amended Senate Bill 1997, as reported from the conference committee, was section 5-6-1 of the UCC as it now stands with the exception of the plea of guilty which was added to subparagraph (c) at a subsequent session of the General Assembly as explained above. There were also additional amendments adding section 5-6-3.1 concerning incidents and conditions of supervision and adding language to section 5-6-4 to encompass supervision.
The conference committee's report was adopted by both houses and as is evident from the detailed recitation above, was essentially the House version with the elimination of the consent ...