Court of Appeals of Illinois, First District, Third Division
Appeal from the Circuit Court of Cook County. No. 10 CR 5825. Honorable Charles P. Burns, Judge Presiding.
Where defendant initially was sentenced to probation on his guilty plea to aggravated unlawful use of a weapon and fines and fees were assessed, but his probation was revoked and he was sentenced to two years in prison, and while his appeal was pending, the Illinois Supreme Court issued Aguilar, which held that the statute defendant violated was unconstitutional, defendant's original conviction, the order of probation, the subsequent revocation, and the fines and fees were all vacated, since courts have an independent duty to vacate void orders such as those entered in defendant's case.
FOR PLAINTIFFS-APPELLEE: Mary Neehgam, Mari Hatzenbuehler, State's Attorney, Cook County, Chicago, IL.
FOR DEFENDANT-APPELLANT: Jean Park, Office of the State Appellate Defender, Chicago, IL.
PRESIDING JUSTICE HYMAN delivered the judgment of the court, with opinion. Justices Pucinski and Mason concurred in the judgment and opinion.
[¶1] Defendant pled guilty and was convicted of one count of aggravated unlawful use of a weapon, sentenced to 18 months' probation, and assessed $680 in fees and fines. On a later finding that he violated the terms of his probation bye possessing a controlled substance, the trial court revoked his probation and sentenced defendant to two years in prison, which he has now served. Defendant appealed only the revocation of his probation and the assessment of the fees and fines. But, while his appeal was pending, the Illinois Supreme Court issued People v. Aguilar, 2013 IL 112116, 377 Ill.Dec. 405, 2 N.E.3d 321, which held that the exact statute defendant pled guilty to violating was unconstitutional on its face. Nevertheless, defendant asks us to leave the void conviction and sentence of probation in place, and limit our consideration solely to the subsequent revocation of his probation and the fees and fines. We conclude that we cannot ignore Aguilar, which put the parties in the same position as if no conviction had ever existed. Accordingly, we vacate defendant's conviction, the order of probation, the subsequent probation revocation, and the assessed fees and fines.
[¶3] Defendant Edward Dunmore was charged by information with one count of unlawful use of a weapon and six counts of aggravated unlawful use of a weapon. On June 9, 2010, Dunmore entered a negotiated guilty plea in which he would plead guilty to one count of aggravated unlawful use of a weapon in exchange for 18 months' probation. The State nol-prossed the remaining counts. The count to which Dunmore pled guilty stated that on or about February 6, 2010, Dunmore:
" knowingly carried in a vehicle, a firearm, at a time when he was not on his own land or in his own abode or fixed place of business and the firearm possessed was uncased, loaded and immediately accessible at the time of the offense, in violation of Chapter 720 Act 5 Section 24-1.6(a)(1)/(3)(A) of the Illinois Compiled Statutes 1992 as amended."
[¶4] The State presented the factual basis for the plea. If the matter had proceeded to trial, Officer Owsianiak would have testified that on February 6, 2010, he conducted a traffic stop of a vehicle driven by Dunmore at 8258 South Stewart Avenue, Chicago. During the course of the stop, the officer observed and recovered a .38-caliber revolver from the center console. The revolver was in plain view and loaded with four live rounds. The court accepted Dunmore's plea of guilty to aggravated unlawful use of a weapon, sentenced Dunmore to 18 months' probation, and imposed $680 in fees and fines.
[¶5] On September 13, 2011, the State sought leave to file a petition to revoke Dunmore's probation, alleging that Dunmore possessed cocaine on September 12, 2011. On February 29, 2012, the court heard the State's petition, which consisted of testimony that police had found cocaine in a shoebox in Dunmore's bedroom. The court revoked Dunmore's probation and sentenced Dunmore to ...