Appeal from the Circuit Court OF ILLINOIS, of Lake County. Honorable Victoria A. Rossetti, Judge, Presiding. No. 99-CF-2426
The opinion of the court was delivered by: Justice Hudson
JUSTICE HUDSON delivered the judgment of the court, with opinion. Justices McLaren and Birkett concurred in the judgment and opinion.
¶ 1 Defendant, Jackie E. Hughes, appeals an order of the circuit court of Lake County denying his motion to vacate a plea of guilty he entered to one count of aggravated criminal sexual abuse (720 ILCS 5/12-16 (West 1998)). Defendant raises two issues before this court. First, he contends that his plea is void because, before he entered it, the State had nol-prossed the count to which he pleaded guilty. Second, defendant argues that his plea was not voluntary because he had not been informed that it could be used as the basis for filing a petition to have him declared a sexually violent person. We find neither of defendant's arguments well founded; therefore, we affirm.
¶ 2 In August 1999, defendant was charged with 10 counts of various sexual offenses, which included 5 counts of aggravated criminal sexual abuse and 5 counts of predatory criminal sexual assault. In December of that year, the State also filed a petition seeking to declare defendant a sexually dangerous person. Subsequently, the State nol-prossed counts I through IV and count VI. In August 2000, defendant was found to be a sexually dangerous person. In January 2001, the trial court entered an order administratively dismissing the remaining counts and closing the case.
¶ 3 On September 26, 2006, by agreement of the parties, the trial court vacated its administrative dismissal. Pursuant to the agreement, defendant pleaded guilty to count VI. He was sentenced to 14 years' imprisonment, with credit for time served. Defendant understood that the Department of Corrections would also calculate good-conduct credit. The State withdrew the petition under which defendant had been adjudicated a sexually dangerous person. However, on October 10, 2006, defendant was examined (the record is unclear as to who examined defendant, though it is apparent that it was some sort of mental health professional), and the State filed a sexually-violent-person petition. This prompted defendant to move to withdraw his plea. At the hearing on that motion, defendant testified that it was his understanding that, if he pleaded guilty, he would be allowed to go home after his good-conduct credit was applied and the matter would be disposed of completely. He stated that, if he had not believed that his plea would bring this matter to an end, he would not have entered it. The attorney who represented defendant at the time he entered the plea testified that he never discussed with defendant the possibility that the State would subsequently file a petition to have defendant declared a sexually violent person. The trial court denied defendant's motion, and this appeal followed.
¶ 4 This appeal presents two relatively narrow questions of law. It is well established that "[w]hether a judgment is void is a question of law." People v. Rodriguez, 355 Ill. App. 3d 290, 293-94 (2005). Generally, whether a defendant should be allowed to withdraw a guilty plea is a decision within the discretion of the trial court that will not be disturbed absent an abuse of that discretion. People v. Manning, 227 Ill. 2d 403, 411-12 (2008). However, whether a consequence of a guilty plea is collateral or direct such that a defendant must be informed of it prior to entering a plea is a question of law. People v. Frison, 365 Ill. App. 3d 932, 934 (2006); People v. Norris, 328 Ill. App. 3d 994, 997 (2002). As we are confronted with issues of law, our review is de novo. People v. Johnson, 238 Ill. 2d 478, 485 (2010). We will discuss additional facts necessary to the resolution of these issues in the course of analyzing them.
¶ 5 I. WHETHER DEFENDANT'S PLEA IS VOID
¶ 6 We turn first to defendant's argument that his plea is void. Defendant begins by pointing out that the State had nol-prossed the charge to which he pleaded guilty (at oral argument, defense counsel agreed that there had been a showing of probable cause when defendant was originally indicted). He then notes that constitutionally, a felony prosecution must be initiated by an indictment or a preliminary hearing. People v. Stafford, 325 Ill. App. 3d 1069, 1073 (2001) ("The Illinois Constitution provides that no person shall be prosecuted for a crime punishable by death or imprisonment unless the charge has been brought by grand jury indictment or pursuant to a preliminary hearing. Ill. Const. 1970, art. I, §7."). "The United States Supreme Court has indicated that pursuant to the fifth amendment, a court cannot permit a defendant to be tried on charges that are not brought in an indictment ***." Id. (citing Stirone v. United States, 361 U.S. 212, 215-17 (1960)).
¶ 7 When a charge is nol-prossed, defendant continues, the State has formally indicated that it is unwilling to prosecute the case. Id. This action has the same effect as moving to dismiss. People v. Gill, 379 Ill. App. 3d 1000, 1003 (2008). Hence, no criminal charges remain pending against the defendant. People v. Watson, 394 Ill. 177, 179 (1946). In order to reinstate the prosecution, the State must file a new charging instrument. People v. Woolsey, 139 Ill. 2d 157, 168 (1990). A trial court has no jurisdiction over a dismissed charge. People v. Fako, 312 Ill. App. 3d 313, 316 (2000). Thus far, we would agree with defendant. Indeed, the State would as well, as it acknowledges that "[a]s a general rule, defendant would be correct." After the State nol-prossedthe count to which defendant purportedly pleaded, there was nothing to which defendant could have pleaded.
¶ 8 We are not able to discern from the record why the State proceeded in the manner that it did. Nevertheless, the State invokes what is known as the revestment doctrine and contends that the general rule should not apply in this case. Under this doctrine, "litigants may revest a court which has general jurisdiction over the matter with both personal and subject matter jurisdiction over the particular cause even after the 30-day period following final judgment during which post-judgment motions must ordinarily be filed." People v. Kaeding, 98 Ill. 2d 237, 240 (1983). This rule applies if the parties "actively participate without objection in proceedings which are inconsistent with the merits of the prior judgment." Id. at 241. Revestment depends not on the consent of the parties but on their active participation in further proceedings. People v. Montiel, 365 Ill. App. 3d 601, 605 (2006). Thus, in People v. Zoph, 381 Ill. App. 3d 435, 450 (2008), this court stated, "[T]his court has consistently maintained that the adverse party's active participation in a proceeding that is inconsistent with the merits of the prior judgment works to revest jurisdiction in the trial court ***." We note that, like when a charge is nol-prossed, a final judgment leaves nothing pending between the parties. See People v. Rozborski, 323 Ill. App. 3d 215, 220 (2001) ("This conclusion flows logically from the general definition of a 'final judgment' as one that terminates the litigation on the merits and leaves nothing to be done but to proceed to execution."); People v. Lillie, 79 Ill. App. 2d 174, 178 (1967) ("[T]he judicial function terminates upon the judgment's becoming final ***.").
¶ 9 In this case, the parties clearly participated in proceedings that were inconsistent with the merits of the prior disposition of the matter. The parties presented an agreed disposition to the trial court. Part of the agreement involved the trial court vacating its administrative dismissal of the case. The parties further agreed that defendant would plead guilty to count VI of the indictment. The trial court admonished defendant regarding his plea. Defendant stipulated to the factual basis for the plea, which the State had recited. Defendant indicated that he wished to plead guilty. Defendant stated that he agreed to the sentence of 14 years. The State withdrew the petition pursuant to which defendant had been adjudicated a sexually dangerous person.
¶ 10 We find considerable guidance for the resolution of this case in People v. Bannister, 236 Ill. 2d 1, 10 (2009). The defendant in Bannister had successfully challenged his earlier conviction and secured a new trial. The sole witness to give direct evidence against the defendant in his first trial had recanted his testimony. Accordingly, the State made a deal with one of the defendant's co-defendants from his first trial, who had previously been convicted of two murders and sentenced to imprisonment for the rest of his natural life. As part of the agreement, the former co-defendant would provide testimony against the defendant and his sentence would be vacated. He would then plead guilty to one count of murder, and the State would nol-pros the other count of which he had been convicted. The defendant challenged the validity of the plea agreement. The supreme court explained: "Further, the defendant's argument that the State lacked the authority to enter into a plea agreement with Johnson is unavailing. Under the revestment doctrine, ...