Appeal from the Circuit Court of Vermilion County; the Hon.
James K. Robinson, Judge, presiding.
JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:
In this appeal, Michael P. Lane, Director of the Illinois Department of Corrections, and C.E. Hughes, sheriff of Vermilion County, challenge a final order granting Benny Newsome's petition for writ of habeas corpus. We reverse.
Newsome, while serving a period of mandatory supervised release, was charged with unlawful use of weapons, theft of a firearm, and theft with a prior theft. Based on the same conduct, the Department of Corrections issued a warrant to apprehend Newsome for the purpose of determining whether he had violated the terms of his mandatory supervised release. The theft charges were dismissed. A jury acquitted Newsome of unlawful use of weapons. The following day Newsome filed a petition for writ of habeas corpus, arguing that the acquittal barred the Department from instituting revocation proceedings for the same alleged conduct. The trial court agreed and granted the petition.
Newsome was released from the penitentiary on mandatory supervised release on September 9, 1982. On November 7, 1983, the State's Attorney of Vermilion County filed an information alleging that Newsome had committed unlawful use of weapons, theft of a firearm, and theft with a prior theft. Also on November 7, 1983, the deputy director of the Department of Corrections issued a warrant for Newsome's arrest pursuant to section 3-14-2 of the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38, par. 1003-14-2), alleging that Newsome had violated the rules and conditions of his mandatory supervised release. Newsome was served with written notice of the charges underlying the Director's warrant that same day. The charges included the three criminal violations named in the information and an allegation that Newsome failed to comply with the conditions of his mandatory supervised release by possessing a firearm.
Prior to the trial on the criminal charges, both theft counts were dismissed. A jury trial was conducted on the unlawful-use-of-weapons charge. The State's evidence established that Newsome had been arrested for violating a municipal ordinance which prohibited drinking alcohol on public property. In the course of a pat-down, the arresting officer discovered a loaded gun secreted in Newsome's pants. The discovery of the weapon in Newsome's clothing was corroborated by the testimony of a second police officer at trial. Newsome claimed, however, that the weapon was found in weeds near the point of arrest. The parties stipulated that Newsome had been convicted of a felony in the preceding five years. The jury acquitted Newsome of the sole charge for which he had been tried.
On the day after the trial, Newsome filed a petition for writ of habeas corpus. The petition alleged that the Director's warrant was based on the same conduct with which Newsome had been charged and tried. It sought an adjudication of the legality of his confinement. On that date Newsome was admitted to a $10,000 recognizance bond.
In the hearing on the petition, only James Winnett, Newsome's parole agent, gave testimony. Winnett testified that he gave Newsome written notice of the charges relating to the Director's warrant on November 7, 1983. He conceded that the charges were based on the same event which gave rise to the criminal charges. He specified, however, that the unlawful-use-of-weapons offense was different than the charge that Newsome had failed to comply with the conditions of his parole by possessing a firearm.
The trial judge granted the petition on two theories. First, he found that the warrant was not valid, because it did not cite the underlying charges on the face of the instrument. Second, he concluded that the respondents were estopped from proceeding against Newsome for the same conduct for which he had been tried. The judge found that Newsome was entitled to relief under section 10-124(2) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 10-124(2)), because the acquittal was a "subsequent event" through which Newsome had become entitled to discharge.
Respondents argue on appeal that the writ of habeas corpus was improvidently granted by the circuit court because: (1) the writ procedure is not available to a prisoner serving a term of mandatory supervised release; (2) the acquittal of a releasee on a criminal charge does not estop the Department from seeking revocation of mandatory supervised release on the basis of the same conduct; and (3) a Director's warrant issued pursuant to section 3-14-2 of the Unified Code of Corrections does not require citation of the charges on the face of the warrant.
• 1 We first consider whether the statutory remedy of habeas corpus is available to Newsome. It is well established that a writ of habeas corpus is available only to obtain the release of a prisoner who has been incarcerated under a judgment of a court which lacked jurisdiction of the subject matter or the person of the petitioner, or where there has been some occurrence subsequent to the prisoner's conviction which entitled him to release. (Hughes v. Kiley (1977), 67 Ill.2d 261, 367 N.E.2d 700; People ex rel. St. George v. Woods (1970), 47 Ill.2d 261, 265 N.E.2d 164.) A petition for writ of habeas corpus may not be used to review proceedings which do not exhibit one of these defects, even though the alleged error involves a denial of constitutional rights. See People v. Reese (1978), 66 Ill. App.3d 199, 383 N.E.2d 759; Long v. Israel (1977), 56 Ill. App.3d 14, 371 N.E.2d 873.
The petition filed by Newsome does not allege any error which is subject to review in habeas corpus proceedings. He raises no question pertaining to jurisdiction, nor has he alleged any post-conviction event which would entitle him to release. As a prisoner on mandatory supervised release, Newsome remains in the legal custody of the Department of Corrections for the duration of the release period. (Ill. Rev. Stat. 1983, ch. 38, par. 1003-14-2(a).) This being true, Newsome's challenge to the legality of the revocation proceedings might affect the manner in which he would serve his term of mandatory supervised release, but it could not conceivably entitle him to actual release or discharge. See People ex rel. Johnson v. Pate (1970), 47 Ill.2d 172, 265 N.E.2d 144, cert. denied (1971), 402 U.S. 976, 29 L.Ed.2d 141, 91 S.Ct. 1679.
Section 10-123 of the Code of Civil Procedure provides in part:
"No person shall be discharged under the provisions of this Act, if he or she is in custody:
2. By virtue of a final judgment of any circuit court, or of any proceeding for enforcement of such judgment, unless the time during which such party may be legally detained has expired." ...