APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION
545 N.E.2d 977, 190 Ill. App. 3d 20, 137 Ill. Dec. 216 1989.IL.1614
Appeal from the Circuit Court of Cook County; the Hon. Thomas Maloney, Judge, presiding.
PRESIDING JUSTICE BILANDIC delivered the opinion of the court. SCARIANO and DiVITO, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BILANDIC
Following a jury trial, defendant, Marshall Hill, was convicted of attempted murder. After a hearing on defendant's post-trial motion, the trial court vacated the judgment of guilty of attempted murder and entered a judgment of guilty of aggravated assault. Defendant was placed on probation for one year.
Neither party objected to the judgment of guilty of aggravated assault. Defendant did not file any post-trial motions dealing with the aggravated assault conviction but did file a timely notice of appeal.
The initial record on appeal did not include an indictment charging the defendant with any crime. A supplemental record included an indictment charging defendant with attempted murder and other crimes. However, it did not charge the defendant with the crime of aggravated assault. The record and supplemental record were prepared and filed by the defendant.
A defendant is brought before the court on a criminal charge by complaint, information, or indictment. (Ill. Rev. Stat. 1987, ch. 38, par. 111-2.) In the case at bar, prosecution of defendant was initiated by a grand jury's return of a bill of indictment. (Ill. Rev. Stat. 1987, ch. 38, par. 112-4(b).) It was the State that formulated the charges and presented evidence to the grand jury on the offenses it desired the bill of indictment to contain. Ill. Rev. Stat. 1987, ch. 38, par. 112-4(a).
If an indictment, information or complaint existed which charged the defendant with aggravated assault and the defendant chose not to include it in the record on appeal, the State could have produced the charging document by way of an additional supplement to the record pursuant to Supreme Court Rule 329 (107 Ill. 2d R. 329).
The report of proceedings reveals that no reference was made to aggravated assault in the opening statements, evidence, final arguments, or instructions to the jury. It is undisputed that aggravated assault is not a lesser included offense of attempted murder.
The issue presented is whether a defendant can be convicted of a crime with which he is not charged and for which he was not tried. I
It is fundamental to our notion of fairness and Justice that a defendant must be charged and tried for a crime in order to properly be convicted for such crime. In Cole v. Arkansas (1948), 333 U.S. 196, 92 L. Ed. 644, 68 S. Ct. 514, the United States Supreme Court held:
"No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal. . . . It is as much a violation of due process to send an accused to prison following conviction of a charge on which he was never tried as it would be ...