Appeal from the Circuit Court of Du Page County, the Hon. Carl
Henniger, Judge, presiding.
JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 2, 1983.
Defendant, Randall Kaeding, pleaded guilty but mentally ill to the offense of indecent liberties with a child and was sentenced by the Du Page County circuit court to nine years' imprisonment. Citing section 5-2-6 of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005-2-6), that court also ordered the Department of Corrections to provide intensive psychotherapy or, if necessary, to transfer defendant to the Department of Mental Health and Developmental Disabilities for that treatment. In addition, the December 17, 1981, sentencing order stated that either department would be required to file a treatment plan with the court within 60 days. On May 14, 1982, the Department of Corrections alternatively moved the court to vacate that order or to amend it. On May 24 defendant apparently filed his own motion to vacate or amend the order, and on June 30 filed another motion seeking to withdraw his guilty plea or amend his sentence. The circuit court vacated the sentencing order on June 30 and docketed the matter for resentencing. After a second sentencing hearing, the court concluded that it lacked jurisdiction to modify the original sentencing order and reaffirmed that order. The court went on to find that a portion of section 5-2-6 was void because of a constitutional infirmity, and the Department of Corrections on September 13 appealed that ruling directly to this court pursuant to Rule 302(a) (87 Ill.2d R. 302(a)). On October 1 defendant filed another motion to withdraw his plea or modify the sentence.
We are met at the outset with a jurisdictional question. We allowed defendant leave to file a motion to strike the Department's appeal, and he contends, apparently because the Department's motion was not filed within 30 days of the entry of the sentencing order, that the circuit court lacked jurisdiction to reaffirm that order and declare part of section 5-2-6 unconstitutional. The Department, however, persuasively argues that the circuit court had jurisdiction pursuant to the revestment doctrine. Under the narrow terms of that well-established rule, litigants may revest a court which has general jurisdiction over the matter with both personal and subject matter jurisdiction over the particular cause after the 30-day period following final judgment during which post-judgment motions must ordinarily be filed. (Ridgely v. Central Pipe Line Co. (1951), 409 Ill. 46, 49; Brown v. Miner (1951), 408 Ill. 123, 126; Craven v. Craven (1950), 407 Ill. 252, 255; Rossiter v. Soper (1943), 384 Ill. 47, 59-60; Weisguth v. Supreme Tribe of Ben Hur (1916), 272 Ill. 541, 543; Grand Pacific Hotel Co. v. Pinkerton (1905), 217 Ill. 61, 83-84. Cf. Sears v. Sears (1981), 85 Ill.2d 253, 260.) Although this court has not had occasion to apply the revestment doctrine in recent years (cf. Sears v. Sears (1981), 85 Ill.2d 253, 260), it enjoys continued vitality in our appellate court. See, e.g., Sabatino v. Kozy Kottage Inn, Inc. (1981), 102 Ill. App.3d 375, 378; Slavick v. Michael Reese Hospital & Medical Center (1980), 92 Ill. App.3d 161, 166; Halleck v. Trumfio (1980), 85 Ill. App.3d 1051, 1055; Faust v. Michael Reese Hospital & Medical Center (1979), 79 Ill. App.3d 69, 72-73.
In order for the rule to apply, the parties must actively participate without objection in proceedings which are inconsistent with the merits of the prior judgment. (See Sears v. Sears (1981), 85 Ill.2d 253, 260; Ridgely v. Central Pipe Line Co. (1951), 409 Ill. 46, 50.) Although the circuit court's order which vacated the original sentencing order recited that jurisdiction was based on motions filed by both the Department and defendant, there is no indication in the record that defendant ever objected to the exercise of jurisdiction in connection with the Department's motion, and it is clear that defendant's participation in the proceedings was not only active but extensive. Furthermore, unlike the situation in Sears v. Sears (1981), 85 Ill.2d 253, where this court recently refused to apply the revestment doctrine because the merits of the previously entered judgment were not opposed in the subsequent proceedings, the Department's motion specifically attacked the substance of the circuit court's sentencing order. Under these circumstances, defendant waived any right to challenge the Department's motion and the circuit court was revested with jurisdiction over the parties.
In support of his motion to strike the Department's appeal, defendant also contends that the circuit court's second sentencing order "merely reaffirmed" the original order. In addition, defendant characterizes the appeal as an impermissible interlocutory appeal, arguing that two motions seeking leave to withdraw his guilty plea or to amend the sentence are still pending in the circuit court. Both of these contentions lack merit. The terms of the second sentencing order reaffirming the original order obviously went far beyond the first order because of the ruling in the second order holding part of section 5-2-6 unconstitutional. Furthermore, an examination of the record reveals that the first of defendant's motions was ruled upon by the circuit court as it served, along with the Department's motion, as the basis for the court's order vacating the original sentencing order. We note, too, that the circuit court's reaffirmance of its original sentencing order, serving to fully adjudicate the rights of the parties, constituted a final judgment. (See Wilkey v. Illinois Racing Board (1983), 96 Ill.2d 245; People ex rel. Scott v. Silverstein (1981), 87 Ill.2d 167, 171. Cf. People v. Allen (1978), 71 Ill.2d 378, 381; People v. Warship (1974), 59 Ill.2d 125, 130.) Because defendant's October 1 motion was not filed until after the Department had filed its notice of appeal, there were no motions pending, and the appeal was not interlocutory in nature.
When ruling that section 5-2-6 was unconstitutionally infirm, the circuit court stated:
"The Court further finds that Chapter 38, sec. 1005-2-6(e)(1) creates a class of offender who, although found guilty but mentally ill, is not required to submit to a course of mental treatment by the sentencing Court, distinguished only by virtue of said offender's confinement within a facility of the Illinois Department of Corrections, while all other like offenders are required to submit to a course of mental treatment prescribed by the sentencing Court; that this classification bears no reasonable relationship to any legitimate State interest and is unconstitutional and void."
The relevant portions of section 5-2-6 provide:
"(a) * * * The court may impose any sentence upon the defendant which could be imposed pursuant to law upon a defendant who had been convicted of the same offense without a finding of mental illness.
(b) If the court imposes a sentence of imprisonment upon a defendant who has been found guilty but mentally ill, the defendant shall be committed to the Department of Corrections, which shall cause periodic inquiry and examination to be made concerning the nature, extent, continuance, and treatment of the defendant's mental illness. The Department of Corrections shall provide such psychiatric, psychological, or other counseling and treatment for the defendant as it determines necessary.
(e)(1) All persons found guilty but mentally ill, whether by plea or by verdict, who are placed on probation or sentenced to a term of periodic imprisonment or a period of conditional discharge shall be required to submit to a course of mental treatment prescribed by the sentencing court.
(2) The course of treatment prescribed by the court shall reasonably assure the defendant's satisfactory progress in treatment or habilitation and for the safety of the defendant and others. The court shall consider terms, conditions and supervision which may include, but need not be limited to, notification and discharge of the person to the custody of his family, community adjustment programs, periodic checks with legal authorities and outpatient care and ...