Original action for mandamus.
JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:
This is an original action seeking the issuance of a writ of mandamus, or in the alternative a supervisory order, directing Associate Judge James M. Schreier of the circuit court of Cook County (respondent) to sentence respondents Susan and Maribeth Sweeny (defendants) in accordance with this court's mandate in People v. Sweeny (Oct. 19, 1981), No. 55206.
A chronological account of the proceedings culminating in this action is necessary to an understanding of the case. In People v. Sweeny the defendants were indicted, inter alia, for the offense of knowingly delivering more than 30 grams of a substance containing cocaine, in violation of section 401(a)(2) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 1401(a)(2)). This section codifies the offense as a Class X felony, the penalty for which is a minimum of six years' imprisonment. Ill. Rev. Stat. 1979, ch. 38, par. 1005-8-1(a)(3).
Following a bench trial, respondent found both defendants guilty in the "manner and form" charged in the indictment. They filed a motion for a new trial, alleging various errors in the proceedings. In particular, defendants claimed that the statutory classification of cocaine as a narcotic was unconstitutional, and therefore the offense was not punishable as a Class X felony. This was the position adopted by the appellate court in People v. McCarty (1981), 93 Ill. App.3d 898. In ruling on the motion, respondent, by a memorandum of decision, stated:
"The indictment in this case charges, and this court has so found, the defendants with delivering 30 grams or more of a substance containing cocaine. The issue now raised by the McCarty holding is whether this offense is punishable as a Class X felony * * *."
In accordance with the McCarty decision, respondent concluded that the statutory classification was unconstitutional. He therefore held that the Class X felony penalty provision was inapplicable and sentenced defendants as Class 3 felons. Respondent imposed on each defendant a penalty of 30 months' probation, with six months of periodic imprisonment and a $2,500 fine. All other aspects of their post-trial motion were denied.
Because the trial court held a portion of a statute unconstitutional, the State brought a direct appeal to this court (see 73 Ill.2d R. 603), challenging respondent's refusal to sentence defendants as Class X felons. The defendants did not cross-appeal their convictions or sentences. On September 30, 1981, during pendency of the appeal, this court reversed the appellate court decision in People v. McCarty. We there held that the statutory classification of cocaine was constitutional. (86 Ill.2d 247.) On October 19, 1981, we issued the following supervisory order in People v. Sweeny:
"In the exercise of this court's supervisory jurisdiction, the portion of the judgment of the Honorable James M. Schreier, Associate Judge of the Circuit Court of Cook County entered on June 25, 1981, in case No. 80-5684, ruling unconstitutional certain portions of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 1100 et seq.) is reversed, and the sentences entered pursuant to that ruling are vacated. (People v. McCarty (Sept. 30, 1981), No. 54745.) The cause is remanded to the circuit court with directions to resentence defendants in accordance with law." (Emphasis added.)
On remand, defendants filed another motion for a new trial, incorporating many of the same grounds as their prior motion. In addition, they alleged that, since they had already served part of a lawfully imposed sentence, it would violate the double jeopardy clause to resentence them to a harsher penalty for the same offense. Further, as to Maribeth Sweeny, it was argued that she had no knowledge that the amount of the substance containing cocaine was more than 30 grams. The State moved to strike the second motion for a new trial on the grounds that the judge lacked jurisdiction to take any action other than that required by this court's mandate.
On January 22, 1982, pursuant to their motion, respondent granted defendants a new trial. He concluded that because he believed defendants could only be guilty of a Class 3 felony, he failed to afford them a fair trial. The case was transferred to another judge, and the State subsequently requested leave to file the petition in the instant case.
The issue is whether this court's mandate, remanding the cause for resentencing only, vested the trial court with jurisdiction to rule upon the second motion for a new trial.
We first consider respondent's contentions that this is not an appropriate case for the exercise of original jurisdiction. He argues that the decision to grant a new trial is discretionary, and mandamus will not lie to correct an abuse of discretion. We agree with this statement of the law. (See International Harvester Co. v. Goldenhersh (1981), 86 Ill.2d 366, 369.) However, the question with which we are concerned is not whether respondent's order was discretionary or ministerial, but whether he lacked the power to enter it. Mandamus may properly be invoked to expunge a judgment which is void for want of jurisdiction. People v. Sears (1971), 49 Ill.2d 14, 32; People ex rel. Meyer v. Kerner (1966), 35 Ill.2d 33, 37; People ex rel. Ward v. Salter (1963), 28 Ill.2d 612, 615; People ex rel. People's Gas Light & Coke Co. v. Smith (1916), 275 Ill. 210, 215.
It is also argued that mandamus will not lie where, as here, no demand was made upon the trial judge to vacate his allegedly erroneous order. However, it has been held that no demand is necessary where the order sought to be expunged involves the public interest as opposed to a purely private right. (People ex rel. Meyer v. Kerner (1966), 35 Ill.2d 33, 37 and cases cited therein.) Further, we consider the issue presented "to be of considerable importance to the administration of justice" (People ex rel. Carey v. Covelli (1975), 61 Ill.2d 394, 401). Hence, mandamus may issue even in the absence of all of the normal criteria. People ex rel. Bier v. Scholz (1979), 77 Ill.2d 12, 16; People ex rel. Carey v. Covelli (1975), 61 Ill.2d 394, 401; People ex rel. Carey v. Strayhorn (1975), 61 Ill.2d 85, 89.
We turn to the question concerning respondent's jurisdiction to enter the order granting a new trial. As previously noted, our supervisory order directed respondent "to resentence defendants in accordance with the law." Clearly, our mandate required that defendants be sentenced as Class X felons, and the cause was remanded for this ...