Opinion
No. 1-14-2860
10-28-2015
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. RAKEEM BURRIS, Defendant-Appellee.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County.
No. 10 CR 12763
The Honorable Thomas M. Davy, Judge Presiding.
JUSTICE PUCINSKI delivered the judgment of the court.
Presiding Justice Mason and Justice Fitzgerald Smith concurred in the judgment.
ORDER
¶ 1 Held: State's appeal dismissed for lack of jurisdiction where neither the July 15, 2014, order denying the State's request to reinstate certain nol-prossed charges, nor the August 19, 2014, order denying its request for reconsideration of that denial had the substantive effect of dismissing any charges against defendant as to permit an appeal pursuant to Supreme Court Rule 604(a)(1) (eff. Dec. 11, 2014).
¶ 2 The State appeals the July 15, 2014, order of the circuit court of Cook County denying its request to reinstate certain counts that were nol-prossed in exchange for defendant, Rakeem Burris, pleading guilty to one count of aggravated unlawful use of a weapon (AUUW) in the
underlying prosecution, and the August 19, 2014, order denying its request for reconsideration of that denial. The State argues that there are no constitutional or statutory limitations that would preclude the prosecution of the nol-prossed charges after defendant successfully petitioned the circuit court to vacate his AUUW conviction as unconstitutional and void ab initio in light of People v. Aguilar, 2013 IL 112116. However, we lack jurisdiction to address the State's arguments and must dismiss the appeal for the reasons to follow.
¶ 3 BACKGROUND
¶ 4 Defendant was 17 years old when he was arrested in July 2010 and charged by information with six counts of AUUW and one count of unlawful possession of a firearm (UPF).
¶ 5 Specifically, count one charged defendant with AUUW for knowingly carrying outside his home, a firearm that was uncased, loaded, and immediately accessible. 720 ILCS 5/24-1.6(a)(1)/(3)(A) (West 2010). Count two charged defendant with AUUW for knowingly carrying a firearm outside his home when he had not been issued a currently valid Firearm Owner's Identification (FOID) Card. 720 ILCS 5/24-1.6(a)(1)/(3)(C) (West 2010). Count three charged defendant with AUUW for knowingly carrying a firearm outside his home when he was under the age of 21. 720 ILCS 5/24-1.6(a)(1)/(3)(I) (West 2010). Count four charged defendant with AUUW for knowingly carrying a firearm that was uncased, loaded, and immediately accessible when he was on a public street. 720 ILCS 24-1.6(a)(2)/(3)(A) (West 2010). Count five charged defendant with AUUW for knowingly carrying a firearm on a public street when he had not been issued a currently valid FOID card. 720 ILCS 5/24-1.6(a)(2)/(3)(C) (West 2010). Count six charged defendant with AUUW for knowingly carrying a firearm on a public street when he was under the age of 21. 720 ILCS 5/24-1.6(a)(2)/(3)(I) (West 2010). Count seven
charged defendant with UPF for possessing a concealable firearm when he was under the age of 18. 720 ILCS 5/24-3.1(a)(1) (West 2010).
¶ 6 On January 24, 2011, defendant pleaded guilty to AUUW under count one of the information and the State nol-prossed the remaining six counts. On the same date, the trial court sentenced defendant to two years' probation. The next day, the State filed a petition for violation of probation against defendant, who "violated his court imposed curfew and committed UUW/Felon."
¶ 7 In June 2011, defendant pleaded guilty to violating the conditions of his probation and the trial court sentenced defendant to three years' imprisonment followed by one year of mandatory supervised release. The trial court further ordered that the sentence be concurrent with the three-year sentence imposed in case number 11 CR 2912 for unlawful use of a weapon by a felon (UUWF).
¶ 8 In September 2013, our supreme court issued its opinion in People v. Aguilar, holding that "the Class 4 form of section 24-1.6(a)(1), (a)(3)(A), (d) violates the right to keep and bear arms, as guaranteed by the second amendment to the United States Constitution." Aguilar, 2013 IL 112116, ¶ 22.
¶ 9 On July 15, 2014, the trial court granted defendant's section 2-1401 petition (735 ILCS 5/2-1401 (West 2010)) to vacate his Class 4 AUUW conviction in case number 10 CR 12763, the underlying prosecution, and his section 2-1401 petition to vacate his Class 3 UUWF conviction in case number 11 CR 2912, which was predicated upon the prior AUUW conviction. The trial court also denied the State's motion to reinstate counts two, three, five and six of the information in the underlying prosecution, and the State's motion to reconsider that denial on August 19, 2014.
¶ 10 ANALYSIS
¶ 11 In this court, the State contends that the trial court erred in denying its request to reinstate previously nol-prossed counts two, three, five, and six. However, defendant argues, and we agree, that our jurisdiction to review this appeal does not exist because the trial court's order denying the State's motion to reinstate the charges is not an appealable ruling that had the substantive effect of dismissing the nol-prossed charges.
¶ 12 Generally, appellate jurisdiction exists only to review final orders. People v. Harrison, 372 Ill. App. 3d 153, 154 (2007). In a criminal proceeding, there is no final judgment until the imposition of sentence, the absence of which precludes our consideration of the appeal therefrom. Harrison, 372 Ill. App. 3d at 155.
¶ 13 Pursuant to Illinois Supreme Court Rule 604(a)(1) (eff. Dec. 11, 2014), our jurisdiction to entertain a criminal case exists only if the order or judgment at issue has the substantial effect of dismissing a charge on one of the grounds enumerated in section 114-1 of the Code of Criminal Procedure. Section 114-1 sets forth specific grounds for dismissing a charge on the motion of defendant, and that did not occur here. People v. Aldama, 366 Ill. App. 3d 724, 725 (2006).
¶ 14 Quoting People v. Boyt, 109 Ill. 2d 403, 411 (1985), the State maintains that our supreme court has held that Rule 604(a)(1) "was not intended to reduce the State's right to appeal to only those grounds enumerated in section 114-1," and "the State has the right to appeal from 'any judgment the substantive effect of which resulted in the dismissal of an indictment, information or complaint.' [Citation.]" However, this precise argument was recently considered and rejected in People v. Shinaul, 2015 IL App (1st) 140477, ¶ 13, where the First Division of this court reasoned that the denial of the State's motion for reinstatement of charges, which were nol-prossed in exchange for the defendant's guilty plea to the Class 4 version of AUUW invalidated
by Aguilar, "cannot be recast as a 'dismissal of an indictment, information, or complaint' [(Boyt, 109 Ill. 2d at 411)] pending before the court." "A nolle prosequi is not an acquittal of the underlying conduct that served as the basis for the original charge but, rather, it leaves the matter in the same condition as before the prosecution commenced. [Citation.]" People v. Hughes, 2012 IL 112817, ¶ 23, quoted in Shinaul, 2015 IL App (1st) 140477, ¶ 13.
¶ 15 Here, as in Shinaul, we conclude that the State is not entitled to an appeal pursuant to Rule 604(a)(1) because the trial court did not enter an order or judgment on either July 15, 2014, or August 19, 2014, that had the substantive effect of dismissing any charges against defendant. Shinaul, 2015 IL App (1st) 140477, ¶ 14.
¶ 16 CONCLUSION
¶ 17 For the reasons stated, we dismiss the State's appeal for lack of jurisdiction.
¶ 18 Appeal dismissed.