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People v. Rozborski

June 29, 2001

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
MICHAEL A. ROZBORSKI, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Du Page County. No. 98--DT--3000 Honorable Jane Hird Mitton, Judge, Presiding.

The opinion of the court was delivered by: Justice Grometer

UNPUBLISHED

Defendant, Michael A. Rozborski, was convicted of misdemeanor driving under the influence of alcohol (DUI) (625 ILCS 5/11--501(a)(2) (West 1996)) and received a year of court supervision. Defendant did not appeal that order (see 145 Ill. 2d R. 604(b)). Almost a year later, the State petitioned to revoke defendant's supervision. Before the trial court heard the State's petition, defendant filed a petition for relief pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122--1 et seq. (West 1998)). The trial court dismissed defendant's petition, holding that he lacked standing to proceed under the Act because he was not "imprisoned in the penitentiary" (725 ILCS 5/122-- 1(a) (West 1998)). Defendant appeals.

On appeal, defendant argues that the dismissal of his post-conviction petition was erroneous. Defendant concedes that he could not seek relief under the Act itself. However, he argues that People v. Warr, 54 Ill. 2d 487 (1973), permits a defendant to seek post-conviction relief from a misdemeanor conviction. The State does not dispute that Warr makes post-conviction relief available to misdemeanants. However, the State urges this court to affirm the judgment of the trial court because (1) defendant filed his petition only after he was no longer subject to the risk of imprisonment; and (2) defendant's petition was untimely under Warr. We agree that a defendant not eligible for relief under the Act may invoke Warr to seek post-conviction relief. Nevertheless, we affirm the judgment of the trial court, although we do so on a basis other than that advanced by the State. We hold that since a final judgment is a prerequisite to obtaining relief under Warr, defendant's petition was premature because he filed it before the court entered a final judgment in his DUI case.

The facts are as follows. On December 10, 1998, a jury found defendant guilty of DUI. On February 4, 1999, the trial court entered a written order imposing a "sentence" of one year of court supervision with an end date of "2/4/00" and the payment of various fines and costs. Another written order set out the conditions of defendant's supervision, including that defendant would make a "FINAL appearance to the Court" at 8:30 a.m. on February 3, 2000.

On February 3, 2000, the State filed a petition to revoke defendant's court supervision (see 730 ILCS 5/5--6--4 (West 1998)). That day, the circuit court set February 25, 2000, for "status on this Petition to Revoke." On February 22, 2000, the court entered another order granting defendant leave to file his "petition to vacate" on or before March 8, 2000, setting a hearing on "said motion" for March 22, 2000, and striking the February 25, 2000, hearing date for the State's petition to revoke defendant's supervision. Nothing in the record refers to any further proceedings on the State's petition to revoke supervision.

On March 8, 2000, defendant filed his "Petition for Post-Conviction Relief," purportedly under the Act and without referencing Warr. The petition alleged that defendant was deprived of the effective assistance of counsel at his trial. On March 21, 2000, the circuit court heard the petition. The trial judge observed that the Act limits relief thereunder to "[a]ny person imprisoned in the penitentiary" (725 ILCS 5/122--1 (West 1998)), clearly excluding defendant. On March 22, 2000, the court dismissed the petition because defendant lacked standing. Defendant timely appealed.

Defendant argues that the trial court erred in holding that he could not file a post-conviction petition. Defendant acknowledges that the Act itself extends only to those "imprisoned in the penitentiary" and thus does not apply to misdemeanor cases such as his. However, as defendant observes, the Warr court recognized this procedural void and provided those convicted of misdemeanors with a form of post-conviction relief "in the nature of a proceeding under the Post-Conviction Hearing Act." Warr, 54 Ill. 2d at 493. Such a proceeding is governed by the Act except in certain respects, one of these being that the defendant need not be imprisoned. Warr, 54 Ill. 2d at 493. Therefore, defendant reasons, the trial court erred as a matter of law in holding that he lacked standing to seek post-conviction relief.

We agree that under Warr defendant did not lack standing to seek post-conviction relief merely because he was not "imprisoned in the penitentiary." Rather than relying on Warr, defendant's petition incorrectly relied on the Act. However, this formal mistake ought not deprive defendant of any right he has to post-conviction relief.

The State concedes that the trial court erred in failing to recognize that, under Warr, defendant was not barred from seeking post-conviction relief merely because he had not been imprisoned. However, the State advances two other bases for affirmance. We believe neither has merit.

The State argues in part that, by the time defendant filed his petition, he could not seek post-conviction relief because his supervision had ended and he was no longer in danger of being imprisoned. Relying on the appellate court's opinion in People v. West, 209 Ill. App. 3d 1019 (1991), aff'd 145 Ill. 2d 517 (1991), the State asserts that "there is no construction of the [Act] under which the defendant's action could have been maintained."

The State's argument is somewhat obscure, as it appears to center on the meaning of the Act. However, defendant does not now rely on the Act but on the supervisory order in Warr, which clearly states that a defendant need not be imprisoned in order to seek relief. Warr, 54 Ill. 2d at 493. Indeed, the very purpose of the order in Warr was to create a post-conviction remedy for a class of defendants who do not face imprisonment.

West does not suggest otherwise. In West, the defendant was a convicted felon who sought relief under the Act. The supreme court held that the defendant lacked standing to invoke the Act because he had already completed his prison term. The court recognized that incarceration is not a precondition to obtaining post-conviction relief. West, 145 Ill. 2d at 519. What was crucial was not that the defendant risked no future imprisonment but that he had completely served his sentence. West, 145 Ill. 2d at 518; see also West, 209 Ill. App. 3d 1019. This holding was consistent with earlier authority that established that a defendant who has completed his sentence may not use the Act simply to purge his criminal record. See People v. Martin- Trigona, 111 Ill. 2d 295, 299 (1986); People v. Farias, 187 Ill. App. 3d 879, 883 (1989).

Although the State phrases its argument in terms of "imprisonment" and the Act, it may be that the State intends to assert that, when defendant filed his post-conviction petition, he could no longer obtain post-conviction relief because his supervision had ended. If the factual premise of this argument is true, its conclusion follows from West and like precedent. If defendant's supervision was over by the time he filed the petition, he would have had no standing to seek post-conviction relief. Not only would he no longer face punishment, the charges would have been ...


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