APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
530 N.E.2d 527, 175 Ill. App. 3d 851, 125 Ill. Dec. 369 1988.IL.1543
Appeal from the Circuit Court of Vermilion County; the Hon. Ralph S. Pearman, Judge, presiding.
JUSTICE KNECHT delivered the opinion of the court. McCULLOUGH and SPITZ, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KNECHT
Defendant was charged by information with one count of aggravated criminal sexual assault. (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 12-14(b)(1).) The information alleged that between January 1, 1983, and April 24, 1985, defendant, who was 17 years of age or older, committed an act of sexual penetration with a female child who was under 13 years of age when the act was committed. A jury convicted defendant as charged and he was sentenced to 15 years' imprisonment. Defendant appeals his conviction and sentence, arguing the charging instrument was defective, the State did not carry its burden of proof at trial, and the jury instructions were incomplete. We reverse and remand.
On April 24, 1985, defendant Curtis Wasson was charged by information with one count of aggravated criminal sexual assault in violation of section 12-14(b)(1) of the Criminal Code of 1961 (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 12-14(b)(1)). The information alleged that between January 1, 1983, and April 24, 1985, defendant had knowingly committed an act of sexual penetration with his niece, M.F., who was under the age of 13 when the act occurred.
Defendant requests his conviction be reversed (1) because he was charged via a complaint, alleging the offense of aggravated criminal sexual assault had been committed sometime during a two-year period that commenced well before July 1, 1984, the effective date of the statute, and (2) because the State did not prove beyond a reasonable doubt that defendant committed the offense sometime after it was created by statute. Defendant further argues he should not have been tried as charged without a jury instruction specifying the effective date of the statute as an essential element of the offense.
Initially we address the sufficiency of the charging instrument. A charging instrument fails to state an offense if the statute under which the defendant is charged and prosecuted is not in effect on the date of the alleged offense. A conviction on a defective instrument must be reversed. (People v. Spain (1974), 24 Ill. App. 3d 377, 321 N.E.2d 520; People v. Hooper (1974), 21 Ill. App. 3d 28, 314 N.E.2d 618.) On its own motion in a supplemental opinion, the appellate court in Spain determined it was plain error for the complaint to charge the defendant with an offense not yet covered by the charging statute. Although the defect issue was not brought to the attention of the trial court, the waiver principle was not applied on appeal. Spain, 24 Ill. App. 3d at 381, 321 N.E.2d at 524.
The defendant here did not argue to the trial court that the State had filed a defective complaint. The serious nature of the State's error compels us to consider this issue nonetheless. People v. Terry (1988), 170 Ill. App. 3d 484, 524 N.E.2d 685.
The law governing sex offenses was substantively changed with the enactment of the criminal sexual assault and abuse law of 1984. (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 12-12 et seq.; People v. Fisher (1985), 135 Ill. App. 3d 502, 481 N.E.2d 1233.) When Public Act 83-1067, effective July 1, 1984, was enacted (1983 Ill. Laws 7251), the legislature set forth a special paragraph which states the act shall only apply to "those persons who commit offenses prohibited under Sections 12-13 through 12-16 of the Criminal Code of 1961, as amended, on or after the effective date of this amendatory Act." (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 12-12.) Thus, the legislature expressly provided a defendant cannot be charged under the new act for an offense committed prior to July 1, 1984. (People v. Haggard (1986), 143 Ill. App. 3d 860, 493 N.E.2d 693.) The law was not intended to be applied retroactively. People v. J.S. (1984), 103 Ill. 2d 395, 469 N.E.2d 1090.
It is clear the one-count information alleging defendant had committed an act of aggravated criminal sexual assault between January 1, 1983, and April 24, 1985, was defective to the extent it charged the act occurred prior to July 1, 1984. At trial the State argued defendant sexually assaulted his niece on numerous occasions during the time period charged. Thus, it would have been better practice for the State to charge defendant under the old statute with one or more counts alleging the offense of aggravated indecent liberties with a child was committed between January 1, 1983, and June 30, 1984 (Ill. Rev. Stat. 1983, ch. 38, par. 11-4.1(a)(1)), and, under the current statute, to enter additional counts for the act or acts committed between July 1, 1984, and April 24, 1985 (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 12-14(b)(1)).
If an indictment or information contains sufficient information to apprise defendant of the charge with sufficient particularity to prepare his defense and to bar future prosecutions arising out of the same offense, it will be upheld when attacked for the first time on appeal. (People v. Pujoue (1975), 61 Ill. 2d 335, 335 N.E.2d 437; People v. Williams (1980), 80 Ill. App. 3d 963, 400 N.E.2d 532.) In this case we consider the flaws in the charging instrument are fatal defects which invalidate the entire instrument and warrant the reversal of defendant's conviction.
While the information adequately apprised defendant of the nature, cause, and elements of the charge against him, it also charged him for conduct which occurred before the statute came into effect. Defendant was hindered in the preparation of his defense because he was forced ...