Appeal from the Appellate Court for the Fifth District; heard
in that court on appeal from the Circuit Court of Saline County,
the Hon. Michael J. Henshaw, Judge, presiding.
JUSTICE UNDERWOOD DELIVERED THE DECISION OF THE COURT AND THE FOLLOWING OPINION IN WHICH CHIEF JUSTICE RYAN AND JUSTICE WARD JOIN:
The State's Attorney of Saline County filed an information on June 12, 1980, charging defendant, Jeffrey D. Pankey, with aggravated battery. The circuit court dismissed the charge on double jeopardy grounds, and the appellate court affirmed. (100 Ill. App.3d 962.) We allowed the State's petition for leave to appeal.
Defendant was arrested in Harrisburg on June 11, 1980, apparently in the early morning hours, and transported to the Saline County jail. The arresting municipal police officer, Gary Sadler, issued an "Illinois Citation and Complaint," a uniform citation used for traffic offenses, which purportedly charged defendant with aggravated battery in violation of "Ill. Rev. Stat. Chapter 38, Paragraph 12-4" occurring on June 10, 1980 at 11:25 p.m. at the "Denny Residence/R.R.2 Hbg." Also printed by the officer on the face of the citation was: "To Be Changed To Criminal Complaint." The citation, which the officer apparently delivered to the circuit clerk that morning, directed defendant to report to the circuit court at the Saline County courthouse on or before July 7, 1980.
Defendant appeared before the circuit court later the same day. There is no indication of the circumstances under which he appeared nor whether he was accompanied, but it is clear that no representative of the State's Attorney's office was present. The entire record of that proceeding consists of a manila envelope within which the ticket was placed. The envelope bears, in what appears to be the handwriting of three different persons, notations which seem to indicate that defendant appeared, entered a plea of guilty to aggravated battery, and was fined $50 plus costs of $15.
The following day, the State's Attorney filed an information, sworn to by Officer Sadler, charging "[t]hat on June 10, 1980, in Saline County, Jeffrey D. Pankey committed the offense of Aggravated Battery in that said defendant, in committing a Battery, in violation of Illinois Revised Statutes, Chapter 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." Defendant subsequently moved to dismiss the information on double jeopardy grounds. When that motion was argued, apparently before the same judge who had presided at the first proceeding, the State's Attorney urged that a felony prosecution could be initiated only by indictment or information and only by the State's Attorney. He further stated that neither he nor his assistant was present during the prior proceeding and urged, in reliance on section 3-4(d)(2) of the Criminal Code of 1961, that the prosecution under the information was not barred. That section provides, in relevant part, "a prosecution is not barred within the meaning of this Section 3-4 if the former prosecution * * * [w]as procured by the defendant without the knowledge of the proper prosecuting officer, and with the purpose of avoiding the sentence which otherwise might be imposed" (Ill. Rev. Stat. 1979, ch. 38, par. 3-4(d)(2)). Defense counsel responded that the Criminal Code specifically allows a defendant to plead to a traffic ticket and that there was nothing at all to indicate that defendant pleaded with the purpose of avoiding a sentence which otherwise might have been imposed. The court subsequently allowed the motion.
In affirming, the appellate court found that there was no evidence of fraud on the part of defendant nor any indication that he procured his own prosecution for the purpose of avoiding a sentence which otherwise might have been imposed. The court rejected the State's contention that the judgment was void because the proceedings were a nullity. It held, citing People v. Gilmore (1976), 63 Ill.2d 23, that the failure to charge an offense does not deprive the circuit court of jurisdiction and that any error in charging defendant with a felony by citation and complaint was one of form and not of substance. While acknowledging that there were many improprieties involved in the first proceeding which would require reversal on direct appeal, that court ultimately concluded that the judgment was at most voidable, and the failure of the State to perfect an appeal therefrom precluded the court from disturbing it in this collateral attack.
The State, while acknowledging that the circuit court had subject matter jurisdiction over an aggravated-battery prosecution, argues here that there was no such prosecution before the circuit court on June 11, 1980, because the only representative of the People of the State of Illinois, the State's Attorney, had not initiated a felony prosecution, and neither knew of nor acquiesced in the proceedings in which the circuit court accepted defendant's guilty plea to a felony purportedly charged on a traffic form filed by a city police officer. Consequently, the State submits, the circuit court acted beyond its authority in accepting a guilty plea to a felony where no such charge was brought by a representative of the State, and the judgment is therefore void. Alternatively, the State asks that we exercise our supervisory authority and vacate the unauthorized sentence of a fine and remand for sentencing in accordance with the law.
Although it is undisputed that no member of the State's Attorney's staff was present on June 11, defendant does attack the State's assertion, and the appellate court's factual finding, that the first proceeding was conducted without the knowledge of the State's Attorney. He contends that the State's Attorney did not deny knowledge of the plea proceedings when he appeared at the hearing on the motion to dismiss the information, and, absent a denial, it must be presumed that the State's Attorney performed his official duty to keep informed as to violations of the criminal laws. Alternatively, he argues that even without the knowledge or presence of the State's Attorney or an assistant, the State was made a party to the proceeding upon the filing of the complaint by the officer, and that this action served to commence the prosecution. While admitting that it was "unusual" for a felony to be charged on a traffic form signed by a municipal police officer and for the subsequent plea and sentencing proceeding to be conducted without involving a representative of the State, defendant urges that the irregularities did not render that proceeding a nullity, and that the judgment thus bars any further prosecution for the same offense. He further argues that there is no evidence of fraud or collusion on the part of defendant which would make the section 3-4(d)(2) exception applicable. Finally, defendant asserts that the State cannot collaterally attack the sentence rendered in the original proceeding by this appeal from the circuit court's order dismissing the subsequently filed information, and that the exercise of this court's supervisory authority to remand for sentencing is therefore inappropriate.
The State's Attorney, as a representative of the People of the State of Illinois, has the duty "[t]o commence and prosecute all actions, suits, indictments and prosecutions, civil and criminal, in the circuit court for his county, in which the people of the State or county may be concerned." (Ill. Rev. Stat. 1979, ch. 14, par. 5(1).) The decision whether to initiate any criminal prosecution at all as well as to choose which of several charges shall be brought are functions within the exclusive discretion of the State's Attorney. People ex rel. Davis v. Vazquez (1982), 92 Ill.2d 132, 150; People ex rel. Carey v. Cousins (1979), 77 Ill.2d 531, 539.
There are three methods by which a criminal prosecution may be commenced in this State: "When authorized by law a prosecution may be commenced by: (a) A complaint; (b) An information; (c) An indictment." (Ill. Rev. Stat. 1979, ch. 38, par. 111-1.) Our rules provide for the form and procedures to be used in traffic and conservation offenses, ordinance offenses, petty offenses and certain misdemeanors, and, under the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 111-3(b)), when a citation is issued on a uniform traffic ticket or uniform conservation ticket the copy which is filed with the clerk constitutes a complaint to which the defendant may plead unless he specifically requests that a verified complaint be filed. All prosecutions of felonies, however, shall be by information or by indictment. (Ill. Rev. Stat. 1979, ch. 38, par. 111-2(a).) This court has held that the form of a charge may be waived by a defendant under certain circumstances (People v. Bradford (1975), 62 Ill.2d 21; People v. Harding (1966), 34 Ill.2d 475, 482), and that a defective charging instrument does not operate to deprive the circuit court of subject matter jurisdiction (People v. Rege (1976), 64 Ill.2d 473, 478; People v. Gilmore (1976), 63 Ill.2d 23, 27) or necessarily render the charge void (People v. Walker (1980), 83 Ill.2d 306, 313-14; People v. Pujoue (1975), 61 Ill.2d 335, 339). While the circuit court here unquestionably had jurisdiction of an aggravated-battery offense, it had no authority to accept a plea of guilty to aggravated battery and enter judgment thereon where no such charge was before the court. In re T.E. (1981), 85 Ill.2d 326.
There is nothing in the record which indicates that defendant procured his own prosecution for the purpose of avoiding a sentence which otherwise might have been imposed. The record does reveal, however, that there was no aggravated-battery prosecution by the State against defendant on June 11, 1980. Neither the State's Attorney nor his assistant initiated any such prosecution on that date. Further, we believe that the record shows that the State's Attorney represented below that he neither knew of nor acquiesced in any such proceeding in the name of the People. Defendant has never contended that the State's Attorney knew of the prior proceeding. His argument here is that the State's Attorney did not claim a lack of knowledge, an argument which we believe is contradicted by the record. As we have indicated, the State's Attorney urged that the prosecution was not barred by virtue of the section 3-4(d)(2) exception contained in the Code which states that a prosecution is not barred if the former prosecution "[w]as procured by the defendant without the knowledge of the proper prosecution officer." (Ill. Rev. Stat. 1979, ch. 38, par. 3-4(d)(2).) In addition, we cannot accept defendant's assertion that the People of the State of Illinois were made a party to a felony prosecution upon the filing of the traffic citation issued by the police officer. There is no question that a police officer has the authority to make a warrantless arrest of a person if he has reasonable grounds to believe that the person is committing or has committed an offense (Ill. Rev. Stat. 1979, ch. 38, par. 107-2(c); People v. Holdman (1978), 73 Ill.2d 213, 222), and to initiate the stationhouse clerical process generally referred to as "booking." (See Kamisar, LaFave, & Israel, Modern Criminal Procedure 16 (5th ed. 1980).) It is, however, the State's Attorney who has the responsibility to initiate and prosecute all actions by and for the People of the State of Illinois (Ill. Rev. Stat. 1979, ch. 14, par. 5), and the police officer's actions in the first instance must yield to the judgment and discretion of the constitutional officer empowered to act. People v. Woollums (1978), 63 Ill. App.3d 602, 609.
This case does not involve a traffic or misdemeanor offense which can be charged by a police officer on a uniform traffic ticket form in the name of the People of the State of Illinois. (73 Ill.2d R. 501.) Rather, the original proceeding here was apparently regarded by the judge as a felony prosecution despite the fact that the only person who could file that charge, the State's Attorney, was not present and knew nothing of the proceedings. Since the police officer was without authority to prosecute the charge and the State's Attorney had neither appeared nor acquiesced in the officer's action, it cannot be said that the circuit court ever acquired jurisdiction over the State in the original proceeding or that the State is estopped from raising that issue. The court's judgment was, consequently, a nullity. See People v. Kidd (1947), 398 Ill. 405, 410; In re T.E. (1981), 85 Ill.2d 326.
In these circumstances, the double jeopardy clauses of the Federal and State constitutions (U.S. Const., amend. V; Ill. Const. 1970, art. I, sec. 10), which protect a defendant from repeated prosecutions by the State for the same offense (Oregon v. Kennedy (1982), 456 U.S. 667, 671, 72 L.Ed.2d 416, 422, 102 S.Ct. 2083, 2087; United States v. Scott (1978), 437 U.S. 82, 87, 57 L.Ed.2d 65, 71-72, 98 S.Ct. 2187, 2192), do not bar the subsequent prosecution. Allowing the State one full opportunity to vindicate its societal interest in the enforcement of the criminal laws (United States v. Jorn (1971), 400 U.S. 470, 483-84, 27 L.Ed.2d 543, 556, 91 S.Ct. 547, 556) does not amount to "`governmental oppression of the sort against which the Double Jeopardy Clause was intended to protect.'" (Tibbs v. Florida (1982), 457 U.S. 31, 44, 72 L.Ed.2d 652, 663, 102 S.Ct. 2211, 2219, quoting United States v. Scott (1978), 437 U.S. 82, 91, 57 L.Ed.2d 65, 74, 98 S.Ct. 2187, 2194.) Although the government cannot use its own error in filing a defective charging instrument to deny a defendant the double jeopardy protections of a judgment rendered thereon (Benton v. Maryland (1969), 395 U.S. 784, 797, 23 L.Ed.2d 707, 717, 89 S.Ct. 2056, 2064; United States v. Ball (1896), 163 U.S. 662, 667-68, 41 L.Ed. 300, 302, 16 S.Ct. 1192, 1194), it is the absence of any charge, appearance or acquiescence by the State in these proceedings which renders Benton inapposite here. A judgment entered by a court having no jurisdiction over either the cause or the party is absolutely void and no bar to a subsequent trial in a court which has jurisdiction. United States v. Ball (1896), 163 U.S. 662, 669, 41 L.Ed. 300, 302, 16 S.Ct. 1192, 1194.
Since the State was authorized to appeal the dismissal of the information (73 Ill.2d R. 604(a)(1)), and consideration of the prior proceeding was necessary to evaluate the double jeopardy claim, the State was not required to appeal from the order entered in the prior proceeding in order to challenge that judgment. People v. Deems (1980), ...