The opinion of the court was delivered by: Presiding Justice Holdridge
IN THE APPELLATE COURT OF ILLINOIS THIRD DISTRICT A.D., 1998
Appeal from the Circuit Court of the 13th Judicial Circuit, Bureau County, Illinois
Honorable James Wimbiscus Judge, Presiding
"Then Solomon answered and said, 'Give the living child to the first woman, and by no means slay it; she is its mother.' And all Israel heard of the judgment which the king had rendered; and they stood in awe of the king, because they perceived that the wisdom of God was in him, to render Justice." 1 Kings 3:27-28 (RSV).
Will Justice be done this day?
In this appeal, the defendant, Edwin Ortiz, maintains that our supreme court has entered an order denying him fundamental Justice and subjecting him to double jeopardy in violation of the United States Constitution. We agree. The State maintains, however, that this court is without authority to overrule a supervisory order of our supreme court, even if we must conclude that the order violates the defendant's constitutional rights. We also agree. We therefore, deny the defendant's request, the sole issue presented on this appeal, that this court enter an order holding that our previous order, an order vacated by our supreme court under its supervisory authority, is a final order not subject to review.
The defendant, Edwin Ortiz, was convicted by a Bureau County Judge of controlled substance trafficking and sentenced to a term of imprisonment of 35 years. On direct appeal, this court reversed that conviction, holding that no rational trier of fact could have found the defendant guilty beyond a reasonable doubt. This court's unpublished Rule 23 order had the concurrence of this Justice and Justice Stouder. Justice Lytton filed a Dissent. Although the order was entered of record on December 12, 1995, Justice Stouder died on December 7, 1995. The State filed a timely petition for rehearing with this court arguing inter alia, that the order was not valid because Justice Stouder had died prior to the filing of the order. That petition for rehearing was denied on January 22, 1996.
The State thereafter filed a petition for leave to appeal with our supreme court. In the petition, the State again contended that the order was invalid because of Justice Stouder's death. The petition for leave to appeal was denied by our supreme court on June 5, 1996.
On June 16, 1996, the mandate of this court was issued and spread of record, and the defendant was released from custody.
Eight months later, our supreme court issued Proctor v. Upjohn Co., 175 Ill. 2d 394 (1997), wherein the court held that a decision of the appellate court in a civil case was invalid due to the fact that one of the two Concurring Judges had vacated his office before the opinion was filed.
On August 11, 1997, well over a year after our supreme court denied the State's petition for leave to appeal, and this court's mandate had issued causing the defendant to be released from custody, the State filed a motion for a supervisory order with our supreme court seeking to have our order vacated. The State's motion was predicated solely upon the holding in Proctor. The defendant filed a timely objection to the State's motion, contending that this court's order, after the issuance of the mandate, was final and binding. He further maintained that any attempt to reopen his case would violate the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution.
On August 26, 1997, our supreme court issued a supervisory order directing this court to vacate its order of December 12, 1995, and all subsequent orders and proceed with the appeal "in a manner not ...