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06/02/94 PEOPLE STATE ILLINOIS v. JULIO C.

June 2, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JULIO C. IZQUIERDO, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Pike County. No. 92CF24. Honorable Michael R. Roseberry, Judge Presiding.

As Corrected June 29, 1994. Petition for Leave to Appeal Denied October 6, 1994.

Honorable James A. Knecht, J., Honorable Carl A. Lund, J., Honorable Frederick S. Green, J.

The opinion of the court was delivered by: Knecht

JUSTICE KNECHT delivered the opinion of the court:

Defendant, Julio Izquierdo, was charged by information with one count of unlawful possession of a controlled substance with the intent to deliver (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1401(a)) and one count of controlled substances trafficking (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1401.1). Following a jury trial in the circuit court of Pike County, defendant was found guilty on both counts. After a sentencing hearing, defendant received concurrent sentences of nine years for possession with intent to deliver and 18 years for controlled substances trafficking. On appeal, defendant argues (1) he was not proved guilty beyond a reasonable doubt on either count; (2) reversible error occurred when the State called a witness knowing he was not going to cooperate; and (3) he was denied effective assistance of counsel. We agree defendant was not proved guilty beyond a reasonable doubt of trafficking and that error occurred when the State called a witness knowing he would claim his privilege against self-incrimination. Therefore, we reverse on both counts and remand for a new trial on the possession count only.

Defendant's vehicle was stopped in Pike County on April 5, 1992, by an Illinois State trooper for failure to display registration. When informed of the reason for the stop defendant pointed out the valid temporary registration on the back window of his hatchback car. Both defendant and his passenger, Peter Reason, produced driver's licenses for identification. While checking the registration, the trooper noticed a white powdery substance on the floorboard underneath the hatchback. Defendant informed him it was sugar. The trooper advised defendant he was going to give him a ticket for improper display of registration and ran a driver's license check on both defendant and Reason and asked for routine backup because of the white powdery substance.

Defendant and Reason exited the vehicle and inspected the powdery substance with the trooper. The substance turned out to have the appearance, feel and taste of sugar. The trooper then noticed a box and sack behind the passenger seat and Reason told him they were his postal scales and showed them to the trooper. A radio transmission was received stating defendant's driver's license was suspended and he was issued a citation. Reason's license was valid so he got back in the driver's seat of the vehicle.

By this time the requested backup had arrived and the two officers asked and were given permission to search defendant's vehicle. Reason exited the driver's side holding a road atlas to his side covering his groin area, Twice he was requested to put his hands up and refused. Finally, a trooper pulled the atlas away from Reason's body and a package slid down the inside of Reason's pants to the ground. The package consisted of two plastic bags inside of which was a Zip-loc bag containing a white powdery substance appearing to be cocaine. The substance was later tested and confirmed as 233 grams of 89% pure cocaine. Defendant's fingerprints were not found on the package. No contraband was found anywhere on defendant's person. A rolled up dollar bill with cocaine residue was recovered from the map pouch next to the front passenger seat where Reason had originally been seated. Cash in the amount of $300 was found on defendant and $1,857 was found on Reason. The demeanor of defendant during the traffic stop was calm, passive and cooperative while Reason was nervous and uncooperative.

Defendant later explained to the trooper he knew nothing about the cocaine on Reason but had only been hired by him to transport Reason from Michigan to Kansas because Reason had missed his plane. Defendant lived in Michigan and worked for a used car dealer with whom Reason did business as he also sold used cars. Defendant was to be paid $200 for the trip and Reason would buy him a plane ticket back to Michigan as well as buy defendant's car.

Defendant called no witnesses and did not testify in his own behalf. He was convicted of trafficking and possession with intent to deliver.

The State argues defendant's reasonable doubt arguments are not properly before this court on appeal because this is an appeal from a post-conviction proceeding. Reasonable doubt of a defendant's guilt is not a proper issue for a post-conviction proceeding. ( People v. Frank (1971), 48 Ill. 2d 500, 504, 272 N.E.2d 25, 27.) However, we are not dealing with a post-conviction proceeding.

Supreme Court Rule 606(b) provides a notice of appeal must be filed within 30 days of entry of final judgment "or if a motion directed against the judgment is timely filed, within 30 days after the entry of the order disposing of the motion." (134 Ill. 2d R. 606(b).) Final judgment occurs in a criminal case only after a defendant is sentenced. ( People v. Woolsey (1990), 139 Ill. 2d 157, 161, 564 N.E.2d 764, 765, 151 Ill. Dec. 309.) If a motion to reconsider the sentence is filed, the time in which to file the appeal begins to run from the date the motion is denied ( People v. Clark (1979), 80 Ill. App. 3d 46, 48-49, 399 N.E.2d 261, 264, 35 Ill. Dec. 427), even though this extends the 30-day period. (Ill. Ann. Stat., ch. 110A, par. 606, Historical and Practice Notes, at 92 (Smith-Hurd 1985).) Defendant had 30 days after the denial of his motion for reduction of sentence to file a notice of appeal and he filed his notice the same day as the denial of the motion. The notice clearly states it is an appeal from the order of May 25, 1993, which contained a denial of the motion for reduction of sentence. The defendant filed a premature notice of appeal more than 30 days after the denial of his original post-trial motions. However, his motion for reduction of sentence was timely filed and remained pending. The trial court apparently believed it necessary to treat defendant's motion to vacate the judgment and reduce his sentence as a post-conviction proceeding to preserve defendant's appellate rights. This was not necessary. The notice of appeal was timely filed from the final order entered in this matter, the denial of the motion for reduction of sentence, and the issue of reasonable doubt as to defendant's guilt on each count is properly before this court.

There are two elements of the offense of controlled substances trafficking: that controlled substances were brought or caused to be brought into Illinois and venue, i.e., where the act of causing drugs to be brought into the State was committed. (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1401.1(a); see people v. Caballero (1992), 237 Ill. App. 3d 797, 803, 604 N.E.2d 1028, 1033, 178 Ill. Dec. 505.) Defendant argues neither one was proved in this case.

No evidence was introduced showing defendant brought or caused to be brought controlled substances into Illinois while he was located in Pike County. However, the specific venue requirement is no longer valid in Illinois. Defendant's offense was committed on April 5, 1992, after the enactment of section 1-6(r) of the Criminal Code of 1961 (Ill. Rev. Stat. 1991, ch. 38, par. 1-6(r)), effective January 1, 1992, which ...


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