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01/07/97 PEOPLE STATE ILLINOIS v. ALBERTO GOMEZ

January 7, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT
v.
ALBERTO GOMEZ, JR., DEFENDANT-APPELLEE.



Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois. No. 95--CF--6465. Honorable Amy Bertani, Judge Presiding.

Released for Publication February 21, 1997.

Present - Honorable Michael P. McCUSKEY, Justice, Honorable Kent Slater, Justice, Honorable Thomas J. Homer, Justice. Justice McCUSKEY delivered the opinion of the court. Homer and Slater, J.j., concur.

The opinion of the court was delivered by: Mccuskey

JUSTICE McCUSKEY delivered the opinion of the court:

The defendant, Alberto Gomez, Jr., was charged with two counts of first degree murder (720 ILCS 5/9--1(a)(2) (West 1994)) and conspiracy to commit first degree murder (720 ILCS 5/8--2(a), 9--1(a)(2) (West 1994)). A jury found the defendant guilty of conspiracy, but was unable to reach a verdict on the first degree murder charges. The trial court declared a mistrial as to those charges. The State requested a sentencing hearing, and the defendant was subsequently sentenced to a term of 14 years in the Department of Corrections for conspiracy to commit first degree murder. Following the sentencing hearing, the trial court granted the defendant's motion to dismiss the first degree murder charges based upon section 8--5 of the Criminal Code of 1961 (Code) (720 ILCS 5/8--5 (West 1994)). The State appeals the trial court's order.

On appeal, the State claims the trial court erred when it dismissed the murder charges against the defendant after he was sentenced for conspiracy to commit first degree murder. Following our review of the record and applicable law, we disagree with the State's contention and affirm the trial court's order.

FACTS

On September 11, 1995, Edward Hare and Paul Fogle were shot to death. The defendant, Norman Campbell and Willie Delira were charged with committing the murders. Because Campbell actually fired the fatal shots, the first degree murder charges against the defendant were based upon an accountability theory. The defendant was also charged with conspiracy to commit first degree murder.

The defendant's jury trial began on March 11, 1996. On March 22, 1996, the jury found the defendant guilty of conspiracy to commit first degree murder. However, the jury was unable to reach a verdict on the first degree murder charges, and the trial court declared a mistrial. At that point, the State requested a sentencing hearing.

At sentencing, the trial court denied the defendant's post-trial motion and sentenced him to a term of 14 years' imprisonment for conspiracy. The defendant's counsel informed the trial court that an appeal would not be taken from the conspiracy conviction. The trial court then admonished the defendant that a notice of appeal had to be filed within 30 days.

Subsequently, the defendant filed a motion to dismiss the murder charges pending against him. The defendant claimed a retrial was barred by section 8--5 of the Code (720 ILCS 5/8--5 (West 1994)). Several days later, the State filed a motion to enter a nolle prosequi of the murder charges against the defendant.

A hearing was held on both pending motions. The prosecutor told the court that the State did not intend to retry the defendant on the murder charges because the sentence imposed for conspiracy was "appropriate under the circumstances." However, the prosecutor stated that he wanted to preserve his right to retry the defendant for murder in the event the conspiracy conviction was vacated. In response, the defendant's counsel argued that the State could not proceed on the murder charges because the conspiracy conviction became final after the sentence was imposed. The defendant's counsel contended that retrial was precluded by section 8--5 of the Code.

Following the hearing, the trial court granted the defendant's motion to dismiss the first degree murder charges. The court concluded that the statute in question required the dismissal of the murder charges because the State had elected to proceed with sentencing on ...


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