{ "id": 535964, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. GOMECINDO TELLEZ-VALENCIA, Appellee; THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. ROBBIE J. MOORE, Appellant", "name_abbreviation": "People v. Tellez-Valencia", "decision_date": "1999-11-18", "docket_number": "No. 85524; No. 85532", "first_page": "523", "last_page": "536", "citations": [ { "type": "official", "cite": "188 Ill. 2d 523" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "117 Ill. 2d 28", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5545138 ], "weight": 3, "year": 1987, "pin_cites": [ { "page": "30-31" }, { "page": "37" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/117/0028-01" ] }, { "cite": "175 Ill. App. 3d 851", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3554585 ], "year": 1988, "pin_cites": [ { "page": "854, 855" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/175/0851-01" ] }, { "cite": "135 Ill. 2d 384", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3256710 ], "year": 1990, "pin_cites": [ { "page": "390" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/135/0384-01" ] }, { "cite": "176 Ill. 2d 499", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 544904 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/ill-2d/176/0499-01" ] }, { "cite": "295 Ill. App. 3d 676", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 45770 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/295/0676-01" ] }, { "cite": "295 Ill. App. 3d 122", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 45792 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/295/0122-01" ] }, { "cite": "131 Ill. App. 2d 598", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2908293 ], "year": 1971, "pin_cites": [ { "page": "599", "parenthetical": "complaint for driving under the influence of intoxicating liquor was defective for leaving out the phrase \"of intoxicating liquor;\" the State could not amend indictment because it failed to state an offense" } ], "opinion_index": 1, "case_paths": [ "/ill-app-2d/131/0598-01" ] }, { "cite": "43 Ill. App. 3d 559", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2725363 ], "weight": 2, "year": 1976, "pin_cites": [ { "page": "561" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/43/0559-01" ] }, { "cite": "87 Ill. App. 3d 978", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3177983 ], "year": 1980, "pin_cites": [ { "page": "982", "parenthetical": "\"a formal defect, such as an incorrect citation of the criminal statute violated, does not require or warrant reversal of a conviction unless the defendant was prejudiced by the miscitation\"" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/87/0978-01" ] }, { "cite": "202 Ill. App. 3d 893", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2587914 ], "year": 1990, "pin_cites": [ { "page": "904-05", "parenthetical": "\"An error in the citation of a statutory provision is a formal rather than substantive defect, when the amendment does not affect the substance of the charge\"" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/202/0893-01" ] }, { "cite": "205 Ill. App. 3d 873", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2566218 ], "year": 1990, "pin_cites": [ { "page": "875-76", "parenthetical": "because the language of the charge was not altered, there was no error when the State was permitted to amend the complaint to change the statutory section" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/205/0873-01" ] }, { "cite": "227 Ill. App. 3d 936", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5793702 ], "year": 1992, "pin_cites": [ { "page": "944", "parenthetical": "\"Where the language of the indictment sufficiently informs a defendant of the charges against him, and defendant cannot demonstrate any prejudice resulting from an incorrect statutory citation, the defect is formal and does not warrant reversal\"" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/227/0936-01" ] }, { "cite": "282 Ill. App. 3d 408", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 159593 ], "year": 1996, "pin_cites": [ { "page": "415", "parenthetical": "\"Although the statute cited in the charging documents was no longer in effect, the criminal offense of child endangerment was still embodied in the Criminal Code. Accordingly, defendants' claim that they were convicted of a nonexistent crime is without merit\"" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/282/0408-01" ] }, { "cite": "282 Ill. App. 3d 912", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 159521 ], "year": 1996, "pin_cites": [ { "page": "917", "parenthetical": "\"An error in the citation of the statute giving rise to the charge is merely a formal defect that is subject to amendment\"" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/282/0912-01" ] }, { "cite": "267 Ill. App. 3d 933", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 333103 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "938" }, { "page": "938" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/267/0933-01" ] }, { "cite": "86 Ill. App. 3d 612", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3184112 ], "year": 1980, "pin_cites": [ { "page": "615" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/86/0612-01" ] }, { "cite": "117 Ill. 2d 28", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5545138 ], "weight": 3, "year": 1987, "pin_cites": [ { "page": "36-37" }, { "page": "36-37" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/117/0028-01" ] }, { "cite": "175 Ill. App. 3d 851", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3554585 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "854-55" }, { "page": "854" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/175/0851-01" ] }, { "cite": "176 Ill. 2d 499", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 544904 ], "year": 1997, "opinion_index": 1, "case_paths": [ "/ill-2d/176/0499-01" ] } ], "analysis": { "cardinality": 833, "char_count": 23465, "ocr_confidence": 0.783, "pagerank": { "raw": 1.7448521846181664e-07, "percentile": 0.7076325685397102 }, "sha256": "5dec2d43ade32186e7dc61307561293d0b5198911f3147ca3ef1cd35c1a1e5b4", "simhash": "1:1bb21cde2a3c3e3c", "word_count": 3849 }, "last_updated": "2023-07-14T20:35:43.350195+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. GOMECINDO TELLEZ-VALENCIA, Appellee. \u2014 THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. ROBBIE J. MOORE, Appellant." ], "opinions": [ { "text": "JUSTICE HEIPLE\ndelivered the opinion of the court:\nBoth defendants in this consolidated appeal were convicted of predatory criminal sexual assault of a child. While defendants\u2019 respective appeals were pending, this court invalidated Public Act 89 \u2014 428, which created this offense. Subsequently, in case No. 85524, the appellate court reversed defendant Gomecindo Tellez-Valencia\u2019s conviction, holding that the State could not amend the charging instrument on appeal. 295 Ill. App. 3d 122. However, the appellate court in No. 85532 affirmed defendant Robbie J. Moore\u2019s conviction, allowing the State to amend the charge on appeal to aggravated criminal sexual assault. 295 Ill. App. 3d 676. We consolidated the two cases, and now hold that, when a defendant is convicted of an offense later held unconstitutional, the State may not amend the charging instrument on appeal.\nBACKGROUND\nDefendants were both charged with and convicted of predatory criminal sexual assault of a child for acts committed in the spring of 1996. Subsequent to defendants\u2019 convictions, and while their appeals were pending, this court held that Public Act 89 \u2014 428 was enacted in violation of the single subject rule (Ill. Const. 1970, art. IV, \u00a7 8) and declared the Act unconstitutional in its entirety. Johnson v. Edgar, 176 Ill. 2d 499 (1997). Shortly thereafter, the General Assembly passed Public Act 89 \u2014 462, reenacting the offense of predatory criminal sexual assault of a child. Public Act 89 \u2014 462 did not become effective, however, until May 29, 1996, and by its language, does not apply to offenses occurring before that date.\nOn appeal, both defendants argued that their convictions were invalid because they were based upon charging instruments that failed to state an offense. The Second District of the Appellate Court reversed the conviction of defendant Tellez-Valencia, holding that only the grand jury could make a substantive change to the defendant\u2019s indictment. 295 Ill. App. 3d at 127. The Fourth District of the Appellate Court, however, reached the opposite result in defendant Moore\u2019s case, holding that the State could amend the trial court\u2019s judgment and sentencing order to change the name of the offense of which defendant was convicted from predatory criminal sexual assault of a child to aggravated criminal sexual assault, thereby effectively amending defendant\u2019s indictment on appeal. In so holding, the court in Moore noted the identical nature and elements of the two offenses, and reasoned that such an amendment constituted a mere formality, thus affirming the conviction. 295 Ill. App. 3d at 683-84. We granted leave to appeal in order to resolve this conflict in the appellate court.\nANALYSIS\nWhen Public Act 89 \u2014 428 was held unconstitutional by this court\u2019s ruling in Johnson v. Edgar, 176 Ill. 2d 499 (1997), the offense of predatory criminal sexual assault of a child was rendered void ah initia-, that is, it was as if the law never existed. See People v. Gersch, 135 Ill. 2d 384, 390 (1990). Although the General Assembly later reenacted the offense, this reenactment had the effect of creating an entirely new criminal statute. Each defendant\u2019s charging instrument thus failed to state an offense because the statute under which each was charged and prosecuted was not in effect when the alleged offenses occurred. Accordingly, defendants\u2019 convictions for predatory criminal sexual assault of a child cannot stand.\nThe State argues that amendment of defendants\u2019 charging instruments on appeal to change the name of the offense charged from predatory criminal sexual assault of a child to aggravated criminal sexual assault is merely a formality because the elements of the two crimes, as well as the statutory language and penalties as applied to defendants, are identical. The State reasons that defendants are not prejudiced in any way by such an amendment because each was apprised of the nature and elements from which to prepare a defense, regardless of the specific name given to the alleged criminal act.\nWhile we acknowledge that formal defects in a charging instrument may be amended by the State at any time (see 725 ILCS 5/111 \u2014 5 (West 1998)), we disagree with the State\u2019s characterization of the proposed amendment in the cases at bar as a mere formality. The committee comments to section 111 \u2014 5 of the Code of Criminal Procedure of 1963 specifically exclude failure to charge a crime from those defects in a charge considered merely formal and which may be cured by amendment at any time, instead labeling this a substantive defect. See 725 ILCS 5/111 \u2014 5, Committee Comments \u2014 1963 (Smith-Hurd 1992). Further, the defect caused by charging an offense based upon a statute not in effect when the alleged offense occurred is fatal, rendering the entire instrument invalid, and warranting reversal of defendants\u2019 convictions. See People v. Wasson, 175 Ill. App. 3d 851, 854, 855 (1988).\nPeople v. Ryan, 117 Ill. 2d 28 (1987), upon which the dissent places great weight, is distinguishable and has no application to the case at bar. In Ryan, the defendants were charged with unlawful possession of a weapon by a felon for acts committed in December 1985 and January 1986. Ryan, 117 Ill. 2d at 30-31. The defendants\u2019 charging instruments, however, incorrectly cited to \u201cIllinois Revised Statutes, 1983,\u201d although the statute which created the offense did not take effect until July 1984. Ryan, 117 Ill. 2d at 37. This court held that citation to the wrong edition of the Illinois Revised Statutes on defendants\u2019 charging instruments was not a fatal defect and reversed the trial court\u2019s ruling that the informations failed to state an offense. Ryan, 172 Ill. 2d at 37.\nUnlike the present case, however, the defendants in Ryan were charged with an offense that was in existence before, during and after the time the defendants committed their crimes. The offense of predatory criminal sexual assault of a child, by contrast, was rendered nonexistent at the time defendants Moore and Tellez-Valencia committed the acts for which they were convicted. Thus, contrary to the dissent\u2019s contention, what occurred in the case at bar was more than just an error in citation on the defendants\u2019 charging instruments, as was the case in Ryan-, both of the instant defendants were charged with and convicted of a nonexistent offense.\nThe amendment sought by the State to each defendant\u2019s charging instrument is to cure a substantive, not a formal, defect. Accordingly, these amendments may not be made on appeal. The charging instrument in each case is therefore invalid, and each defendant\u2019s conviction must be reversed.\nCONCLUSION\nFor the above reasons, we affirm the judgment of the appellate court in cause No. 85524 and reverse the judgments of the appellate and circuit courts in cause No. 85532.\nNo. 85524 \u2014 Affirmed.\nNo. 85532 \u2014 Judgments reversed.", "type": "majority", "author": "JUSTICE HEIPLE" }, { "text": "JUSTICE RATHJE,\ndissenting:\nAlthough I am compelled to dissent in this case, my colleagues and I in fact disagree on very little. We agree, for example, that the statutory language defining the offense at issue was in effect when the defendants allegedly committed the offense. Likewise, we agree that, as a consequence of this court\u2019s decision in Johnson v. Edgar, 176 Ill. 2d 499 (1997), the offense at issue remained a part of the aggravated criminal sexual assault statute.\nThe only source of contention is the remedy. The defendants were charged with conduct that was unquestionably a crime when committed and has remained a crime ever since. The fact that the charging instruments misnamed the offense is therefore a formal defect that the State should be permitted to amend. Apparently fearing a constitutional deprivation, my colleagues issue an opinion that will result in new trials at which the defendants will be charged with the exact same conduct set forth in the original charging instruments. I believe the majority\u2019s approach is both unwarranted and a clear departure from established precedent.\nThe majority reaches the wrong result because of two faulty premises in its analysis. According to my colleagues, these cases involve (1) an offense held unconstitutional, and (2) charging instruments that fail to state offenses. One of these propositions is misleading; the other is simply incorrect. Once these cases are viewed under the correct factual and legal framework, the error of the majority\u2019s conclusion becomes obvious.\nCONSTITUTIONALITY\nThe majority begins by stating that these consolidated cases involve defendants who have been \u201cconvicted of an offense later held unconstitutional.\u201d This statement gives new meaning to the phrase \u201clegal fiction.\u201d The statutory language relevant to these appeals is the following:\n\u201c[T]he accused was 17 years of age or over and commits an act of sexual penetration with a victim who was under 13 years of age when the act was committed.\u201d\nFor the purposes of this dissent, I will refer to this language as \u201cthe offense.\u201d At all relevant times in these cases, the offense was part of the Illinois Compiled Statutes.\nThe offense originally appeared in section 12\u2014 14(b)(1) of the Criminal Code of 1961 (720 ILCS 5/12\u2014 14(b)(1) (West 1994)) and was one of several different ways in which a person could commit aggravated criminal sexual assault. Public Act 89 \u2014 428 moved the offense from the aggravated criminal sexual assault statute and designated it the separate offense of predatory criminal sexual assault of a child. The offense was then given the new statutory section number 12 \u2014 14.1(a)(1) (720 ILCS 5/12 \u2014 14.1(a)(1) (West 1996)). In other words, Public Act 89 \u2014 428 merely moved the relevant statutory paragraph one section over and gave it a new title and number. The legislature was not creating a new offense; it was merely giving an old offense a new name. When this court invalidated Public Act 89 \u2014 428 on single subject grounds, the law was restored to its previous state. Thus, the offense was always part of the aggravated criminal sexual assault statute.\nThe offense has not been held unconstitutional. There is nothing unconstitutional about forbidding persons over 17 years of age from committing acts of sexual penetration with persons under 13 years of age. When the majority states that the offense was held unconstitutional, what the majority really means to say is that the Public Act changing the title of the offense was passed in violation of the single subject clause of the Illinois Constitution.\nAMENDMENT OF THE CHARGING INSTRUMENTS\nThe majority exalts form over substance in holding the defects in the charging instruments to be substantive rather than formal. The majority\u2019s entire analysis of this issue is the simple assertion that failure to charge an offense is a substantive defect. I have no quarrel with this assertion, except that it does not apply to these cases.\nThe majority opinion contains a significant glaring omission: any analysis of the law that pertains to defects in indictments, specifically which types of defects are substantive and which are formal. In fact, it would be impossible for the majority to discuss the applicable law and reach the conclusion it reaches.\nThe policy of the courts is to disregard mere technical objections to a charge and to require only that the charging instrument state the essential elements of the offense. People v. Cazares, 86 Ill. App. 3d 612, 615 (1980). Charging instruments may be amended at any time to correct formal defects; a formal defect is one that does not alter the nature and elements of the charged offense. People v. Patterson, 267 Ill. App. 3d 933, 938 (1993).\nThe rule is well established in Illinois that an incorrect statutory citation in a charging instrument is a formal defect when the defendant suffers no prejudice. See, e.g., Ryan, 117 Ill. 2d at 36-37 (error in informations citing statute that did not exist was not fatal because defendants suffered no prejudice); People v. Dunskus, 282 Ill. App. 3d 912, 917 (1996) (\u201cAn error in the citation of the statute giving rise to the charge is merely a formal defect that is subject to amendment\u201d); People v. Melton, 282 Ill. App. 3d 408, 415 (1996) (\u201cAlthough the statute cited in the charging documents was no longer in effect, the criminal offense of child endangerment was still embodied in the Criminal Code. Accordingly, defendants\u2019 claim that they were convicted of a nonexistent crime is without merit\u201d); People v. Witt, 227 Ill. App. 3d 936, 944 (1992) (\u201cWhere the language of the indictment sufficiently informs a defendant of the charges against him, and defendant cannot demonstrate any prejudice resulting from an incorrect statutory citation, the defect is formal and does not warrant reversal\u201d); People v. Harris, 205 Ill. App. 3d 873, 875-76 (1990) (because the language of the charge was not altered, there was no error when the State was permitted to amend the complaint to change the statutory section); People v. House, 202 Ill. App. 3d 893, 904-05 (1990) (\u201cAn error in the citation of a statutory provision is a formal rather than substantive defect, when the amendment does not affect the substance of the charge\u201d); People v. Boyd, 87 Ill. App. 3d 978, 982 (1980) (\u201ca formal defect, such as an incorrect citation of the criminal statute violated, does not require or warrant reversal of a conviction unless the defendant was prejudiced by the miscitation\u201d).\nAs the majority correctly notes, the failure of a charging instrument to state an offense is a substantive defect. The failure to state an offense means that the charging instrument left out some crucial element so that the allegations do not state a crime. For instance, in People v. Johnson, 43 Ill. App. 3d 559 (1976), an indictment charged the defendant with unlawful use of weapons in violation of section 24 \u2014 l(a)(10) of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 24\u2014 l(a)(10)). That section made it a crime to carry a loaded weapon, but the indictment left out the word \u201cloaded.\u201d Therefore, the court held that the indictment contained a substantive defect because it did not state an offense. Johnson, 43 Ill. App. 3d at 561. See also, e.g., People v. Tucker, 131 Ill. App. 2d 598, 599 (1971) (complaint for driving under the influence of intoxicating liquor was defective for leaving out the phrase \u201cof intoxicating liquor;\u201d the State could not amend indictment because it failed to state an offense).\nThe question that must be asked is which of these principles applies to this case. Did the charging instruments fail to state offenses or did they contain incorrect statutory citations? The charging instruments alleged that the defendants were over 17 years of age and committed acts of sexual penetration with victims under 13 years of age. These charging instruments properly charged the defendants with the offense. The effect of this court\u2019s decision in Johnson is that the offense was always part of the aggravated criminal sexual assault statute, and therefore the charging instruments should have used the term \u201caggravated criminal sexual assault\u201d rather than \u201cpredatory criminal sexual assault of a child.\u201d Although the charging instruments properly stated offenses, the State, through no fault of its own, cited the wrong statute. I ask my colleagues in the majority to open their 1994 statute books, read section 12\u2014 14(b)(1) of the Criminal Code of 1961, and explain to me how these charging instruments did not state offenses. As stated previously, at all relevant times in these cases it was a Class X felony for a person over 17 years of age to commit an act of sexual penetration with a victim under 13 years of age. The only question there has ever been is whether section 12 \u2014 14(b)(1) and the title \u201caggravated criminal sexual assault\u201d or section 12\u2014 14.1(a)(1) and the title \u201cpredatory criminal sexual assault of a child\u201d is the correct citation.\nIn People v. Ryan, 117 Ill. 2d 28 (1987), the State charged the defendants with unlawful use of weapons by a felon, but cited a statutory compilation that did not contain that offense. The trial judge ruled that the informations did not state offenses. This court reversed, holding that the citations were not so misleading that the defendants could have been prejudiced by them. Writing for a unanimous court, Justice Miller explained that, although the State cited a statutory compilation that predated the existence of the offense, the defendants were given fair notice of the nature and elements of the charges against them. Because the defendants suffered no prejudice, the citation to a nonexistent statute was not fatal. Ryan, 117 Ill. 2d at 36-37.\nAllowing the majority opinion and Ryan to co-exist violates our obligation to provide the lower courts with clarity of decision. The rule now established is as follows: If the State carelessly and mistakenly cites a statute that does not exist, the defect is formal and does not warrant reversal (Ryan); if the State through no fault of its own cites a statute that does not exist, the defect is substantive and requires reversal (Tellez-Valencia). We are doing a true disservice to the lower courts by expecting them to reconcile these two decisions.\nThe majority argues that Ryan is distinguishable. I agree. In Ryan, if the defendants or their attorneys would have looked up the statute the State cited in the charging instruments, they would have found no such statute. Thus, a question existed whether the defendants were given fair warning of the charges against them. By contrast, if defendants Tellez-Valencia and Moore or their attorneys had checked the statute cited in their charging instruments, they would have learned that they were charged with Class X felonies for being over 17 and committing acts of sexual penetration with victims under the age of 13. Thus, the distinction between the two cases is that the defendants in Ryan were at least arguably subjected to potential prejudice, yet this court still found the defects to be formal, while the defendants in the cases now before this court suffered no prejudice, yet this court holds that the defects are substantive. The majority\u2019s statement that the defendants in this case, unlike the defendants in Ryan, were charged with an offense that did not exist is simply untrue. At the time defendants were accused of sodomizing children, the exact statutory language the State cited in the charging instruments was in effect in section 12 \u2014 14(b)(1) of the Criminal Code of 1961 (720 ILCS 5/12 \u2014 14(b)(1) (West 1994)).\nThe majority relies solely on an appellate court decision, People v. Wasson, 175 Ill. App. 3d 851, 854-55 (1988), in which the court held that charging the new aggravated criminal assault statute rather than the old aggravated indecent liberties with a child statute was a substantive defect. Assuming arguendo that Wasson was correctly decided, it is distinguishable because, as the court clearly explained, the law governing sex offenses was substantively changed by the enactment of the criminal sexual assault and abuse law of 1984. Wasson, 175 Ill. App. 3d at 854. The State sought to substitute one statute for another that was not the same. Aggravated indecent liberties with a child was committed when a person over the age of 17 committed an act of sexual intercourse with a child under the age of 12 (Ill. Rev. Stat. 1983, ch. 38, par. 11 \u2014 4.1(a)(1)(A)), while aggravated criminal sexual assault was committed when a person over the age of 17 committed an act of sexual penetration with a person under the age of 13 (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 12 \u2014 14(b)(1)). By contrast, the change from aggravated criminal sexual assault to predatory criminal sexual assault of a child was merely a change in statutory titles and section numbers. Unlike the statutes at issue in Wasson, the exact same language defined both offenses.\nInterestingly, the charging instrument in Moore has already been amended once to reflect the change in the law. The State filed an information charging defendant Moore with committing aggravated criminal sexual assault. When the State determined that the name of the offense had been changed to \u201cpredatory criminal sexual assault of a child,\u201d the trial court allowed the State to amend the information to charge the new title and section number. The majority does not address whether this first amendment was also improper.\nThe defendants in these cases were given fair warning of the charges against them. The defects in the charging instruments were formal because they did not alter the nature and elements of the charged offense. Patterson, 267 Ill. App. 3d at 938. The defendants would suffer no prejudice by allowing the State to amend the charging instruments to reflect the proper statutory titles and section numbers. I invite any member of the majority to explain how the defendants would be prejudiced. I would particularly like to hear how the defendants were not given fair warning of the charges against them, and how the defendants will prepare their defenses differently now that they know that the name of the charged offense is \u201caggravated criminal sexual assault\u201d rather than \u201cpredatory criminal sexual assault of a child.\u201d\nThe defendants were tried and convicted on the basis of charging instruments that accused them of Class X felonies for being over 17 years of age and committing acts of sexual penetration with victims under 13 years of age. The majority holds that the convictions should be reversed. The effect of this decision is that the defendants will be retried under new charging instruments that will charge the defendants with Class X felonies for being over 17 years of age and committing acts of sexual penetration with victims under 13 years of age. I cannot imagine a greater waste of judicial resources.\nCHIEF JUSTICE FREEMAN joins in this dissent.\nPublic Act 89 \u2014 428 also added an additional type of predatory criminal sexual assault that involves situations in which the accused causes the victim great bodily harm. See 720 ILCS 5/12\u2014 14.1(a)(2) (West 1996). All parties agree that this paragraph is not involved in these cases and that the defendants were charged under paragraph (a)(1).", "type": "dissent", "author": "JUSTICE RATHJE," } ], "attorneys": [ "James E. Ryan, Attorney General, of Springfield, and Michael J. Waller, State\u2019s Attorney, of Waukegan (Joel D. Bertocchi, Solicitor General, and William L. Browers and Lisa Anne Hoffman, Assistant Attorneys General, of Chicago, and Norbert J. Goetten, Martin P. Moltz and Richard S. London, of the Office of the State\u2019s Attorneys Appellate Prosecutor, of Elgin, of counsel), for the People.", "G. Joseph Weller, Deputy Defender, and Barbara R. Paschen, Assistant Defender, of the Office of the State Appellate Defender, of Elgin, for appellee.", "Daniel D. Yuhas, Deputy Defender, and Lawrence J. Essig, Assistant Defender, of the Office of the State Appellate Defender, of Springfield, for appellant.", "James E. Ryan, Attorney General, of Springfield, and Michael D. Clary, State\u2019s Attorney, of Danville (Joel D. Bertocchi, Solicitor General, and William L. Browers and Lisa Anne Hoffman, Assistant Attorneys General, of Chicago, of counsel), for the People." ], "corrections": "", "head_matter": "(No. 85524.\n(No. 85532.\nTHE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. GOMECINDO TELLEZ-VALENCIA, Appellee. \u2014 THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. ROBBIE J. MOORE, Appellant.\nOpinion filed November 18, 1999.\nRehearing denied January 31, 2000.\nRATHJE, J., joined by FREEMAN, C.J., dissenting.\nJames E. Ryan, Attorney General, of Springfield, and Michael J. Waller, State\u2019s Attorney, of Waukegan (Joel D. Bertocchi, Solicitor General, and William L. Browers and Lisa Anne Hoffman, Assistant Attorneys General, of Chicago, and Norbert J. Goetten, Martin P. Moltz and Richard S. London, of the Office of the State\u2019s Attorneys Appellate Prosecutor, of Elgin, of counsel), for the People.\nG. Joseph Weller, Deputy Defender, and Barbara R. Paschen, Assistant Defender, of the Office of the State Appellate Defender, of Elgin, for appellee.\nDaniel D. Yuhas, Deputy Defender, and Lawrence J. Essig, Assistant Defender, of the Office of the State Appellate Defender, of Springfield, for appellant.\nJames E. Ryan, Attorney General, of Springfield, and Michael D. Clary, State\u2019s Attorney, of Danville (Joel D. Bertocchi, Solicitor General, and William L. Browers and Lisa Anne Hoffman, Assistant Attorneys General, of Chicago, of counsel), for the People." }, "file_name": "0523-01", "first_page_order": 657, "last_page_order": 670 }