{ "id": 1544420, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ALBERTO GOMEZ, JR., Defendant-Appellee", "name_abbreviation": "People v. Gomez", "decision_date": "1997-01-07", "docket_number": "No. 3\u201496\u20140523", "first_page": "232", "last_page": "236", "citations": [ { "type": "official", "cite": "286 Ill. App. 3d 232" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "483 N.E.2d 1236", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "pin_cites": [ { "page": "1237", "parenthetical": "under factually similar circumstances, the State \"moved for a retrial of the murder charge and requested that sentencing on the conspiracy conviction be deferred until after the defendant had been retried for murder\"" } ], "opinion_index": 0 }, { "cite": "108 Ill. 2d 301", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3129386 ], "year": 1985, "pin_cites": [ { "page": "305", "parenthetical": "under factually similar circumstances, the State \"moved for a retrial of the murder charge and requested that sentencing on the conspiracy conviction be deferred until after the defendant had been retried for murder\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/108/0301-01" ] }, { "cite": "564 N.E.2d 764", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "pin_cites": [ { "page": "765" } ], "opinion_index": 0 }, { "cite": "139 Ill. 2d 157", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5574114 ], "year": 1990, "pin_cites": [ { "page": "161" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/139/0157-01" ] }, { "cite": "236 N.E.2d 12", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1968, "pin_cites": [ { "page": "14", "parenthetical": "the State could not seek a conviction for the principal offense \"after it had obtained a conviction on the conspiracy count\"" } ], "opinion_index": 0 }, { "cite": "92 Ill. App. 2d 168", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5322172 ], "year": 1968, "pin_cites": [ { "page": "173", "parenthetical": "the State could not seek a conviction for the principal offense \"after it had obtained a conviction on the conspiracy count\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/92/0168-01" ] }, { "cite": "285 Ill. App. 3d 347", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1295568 ], "year": 1996, "pin_cites": [ { "page": "350", "parenthetical": "this court reversed defendant's theft conviction because the defendant \"could not be convicted in Illinois for the principal offense\" where he was convicted of the inchoate form of the offense in Arizona" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/285/0347-01" ] }, { "cite": "588 N.E.2d 1159", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "1171" } ], "opinion_index": 0 }, { "cite": "146 Ill. 2d 494", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5597224 ], "year": 1992, "pin_cites": [ { "page": "519" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/146/0494-01" ] }, { "cite": "583 N.E.2d 7", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "9" }, { "page": "9", "parenthetical": "Illinois law does not permit the State to sentence a defendant for both the inchoate and the principal offense" } ], "opinion_index": 0 }, { "cite": "221 Ill. App. 3d 737", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5798551 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "741" }, { "page": "741" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/221/0737-01" ] } ], "analysis": { "cardinality": 392, "char_count": 8531, "ocr_confidence": 0.773, "pagerank": { "raw": 4.947487136851577e-08, "percentile": 0.3105906946698437 }, "sha256": "6c3e1215e37e3631e50fdf82dd1e8997d372715e5721241050c0d42878ed5c9d", "simhash": "1:a322448f12ee95f2", "word_count": 1415 }, "last_updated": "2023-07-14T20:24:46.991294+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ALBERTO GOMEZ, JR., Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE McCUSKEY\ndelivered the opinion of the court:\nThe defendant, Alberto Gomez, Jr., was charged with two counts of first degree murder (720 ILCS 5/9\u20141(a)(2) (West 1994)) and conspiracy to commit first degree murder (720 ILCS 5/8\u20142(a), 9\u20141(a)(2) (West 1994)). A jury found the defendant guilty of conspiracy, but was unable to reach a verdict on the first degree murder charges. The trial court declared a mistrial as to those charges. The State requested a sentencing hearing, and the defendant was subsequently sentenced to a term of 14 years in the Department of Corrections for conspiracy to commit first degree murder. Following the sentencing hearing, the trial court granted the defendant\u2019s motion to dismiss the first degree murder charges based upon section 8\u20145 of the Criminal Code of 1961 (Code) (720 ILCS 5/8\u20145 (West 1994)). The State appeals the trial court\u2019s order.\nOn appeal, the State claims the trial court erred when it dismissed the murder charges against the defendant after he was sentenced for conspiracy to commit first degree murder. Following our review of the record and applicable law, we disagree with the State\u2019s contention and affirm the trial court\u2019s order.\nFACTS\nOn September 11, 1995, Edward Hare and Paul Fogle were shot to death. The defendant, Norman Campbell and Willie Delira were charged with committing the murders. Because Campbell actually fired the fatal shots, the first degree murder charges against the defendant were based upon an accountability theory. The defendant was also charged with conspiracy to commit first degree murder.\nThe defendant\u2019s jury trial began on March 11, 1996. On March 22, 1996, the jury found the defendant guilty of conspiracy to commit first degree murder. However, the jury was unable to reach a verdict on the first degree murder charges, and the trial court declared a mistrial. At that point, the State requested a sentencing hearing.\nAt sentencing, the trial court denied the defendant\u2019s post-trial motion and sentenced him to a term of 14 years\u2019 imprisonment for conspiracy. The defendant\u2019s counsel informed the trial court that an appeal would not be taken from the conspiracy conviction. The trial court then admonished the defendant that a notice of appeal had to be filed within 30 days.\nSubsequently, the defendant filed a motion to dismiss the murder charges pending against him. The defendant claimed a retrial was barred by section 8\u20145 of the Code (720 ILCS 5/8\u20145 (West 1994)). Several days later, the State filed a motion to enter a nolle prosequi of the murder charges against the defendant.\nA hearing was held on both pending motions. The prosecutor told the court that the State did not intend to retry the defendant on the murder charges because the sentence imposed for conspiracy was \"appropriate under the circumstances.\u201d However, the prosecutor stated that he wanted to preserve his right to retry the defendant for murder in the event the conspiracy conviction was vacated. In response, the defendant\u2019s counsel argued that the State could not proceed on the murder charges because the conspiracy conviction became final after the sentence was imposed. The defendant\u2019s counsel contended that retrial was precluded by section 8\u20145 of the Code.\nFollowing the hearing, the trial court granted the defendant\u2019s motion to dismiss the first degree murder charges. The court concluded that the statute in question required the dismissal of the murder charges because the State had elected to proceed with sentencing on the conspiracy conviction. The State filed a timely notice of appeal.\nISSUE PRESENTED\nThe State claims the trial court erred when it granted the defendant\u2019s motion to dismiss. The State argues that section 8\u20145 of the Code does not bar the State from retrying the defendant for murder. The State also asserts that the trial court should have granted its motion to enter a nolle prosequi of the murder charges. Based upon the unique procedural history of this case, we disagree with the State\u2019s arguments.\nANALYSIS\nSection 8\u20145 of the Code states, \"No person shall be convicted of both the inchoate and the principal offense.\u201d 720 ILCS 5/8\u20145 (West 1994). Conspiracy is an inchoate offense. People v. Allen, 221 Ill. App. 3d 737, 741, 583 N.E.2d 7, 9 (1991). Section 8\u20145 was effective in 1962 and was intended to limit conviction and punishment to either the inchoate or the principal offense, where the principal offense was accomplished. 720 ILCS Ann. 5/8\u20145, Committee Comments\u20141961, at 519 (Smith-Hurd 1993). The provision was a change in Illinois law as to conspiracy because \"it was possible previously to convict both of conspiracy and of the principal offense which was the object of the conspiracy.\u201d 720 ILCS Ann. 5/8\u20145, Committee Comments\u20141961, at 520 (Smith-Hurd 1993). Accordingly, after section 8\u20145 became effective, a defendant could not be convicted of both murder and the inchoate offense of conspiracy to commit murder. See People v. St. Pierre, 146 Ill. 2d 494, 519, 588 N.E.2d 1159, 1171 (1992).\nThe comments to section 8\u20145 also state:\n\"By virtue of the definition of 'conviction,\u2019 this means that prosecution may be had for both offenses in the same trial (by separate counts) or separately. But after proceeding finally to verdict of guilty on one or both, the judgment of conviction and sentence shall be entered on only one offense.\u201d (Emphasis added.) 720 ILCS Ann. 5/8\u20145, Committee Comments\u20141961, at 520 (Smith-Hurd 1993).\nThe Committee Comments make it clear that a judgment of conviction and sentence may be entered on either the inchoate or the principal offense, but not both. See Allen, 221 Ill. App. 3d at 741, 583 N.E.2d at 9 (Illinois law does not permit the State to sentence a defendant for both the inchoate and the principal offense).\nUnder section 8\u20145, once a final \"judgment of conviction and sentence\u201d is entered on either the inchoate or the principal offense, no judgment of conviction and sentence may be entered on the other offense. See People v. Levan, 285 Ill. App. 3d 347, 350 (1996) (this court reversed defendant\u2019s theft conviction because the defendant \"could not be convicted in Illinois for the principal offense\u201d where he was convicted of the inchoate form of the offense in Arizona); People v. Brouilette, 92 Ill. App. 2d 168, 173, 236 N.E.2d 12, 14 (1968) (the State could not seek a conviction for the principal offense \"after it had obtained a conviction on the conspiracy count\u201d). We note that a \"judgment is considered final in a criminal case only after a defendant has been convicted and sentenced.\u201d (Emphasis added.) People v. Woolsey, 139 Ill. 2d 157, 161, 564 N.E.2d 764, 765 (1990).\nHere, in the instant case, following trial, the State requested a sentencing hearing on the conspiracy conviction. Cf. People ex rel. Daley v. Crilly, 108 Ill. 2d 301, 305, 483 N.E.2d 1236, 1237 (1985) (under factually similar circumstances, the State \"moved for a retrial of the murder charge and requested that sentencing on the conspiracy conviction be deferred until after the defendant had been retried for murder\u201d). Because the State elected to proceed to sentencing in this case, the trial court sentenced the defendant to a term of 14 years in the Department of Corrections. The record is clear that the defendant did not file a notice of appeal. Moreover, at oral argument, the defendant\u2019s attorney confirmed that no notice of appeal was filed or would be filed.\nUnder these circumstances, the conspiracy judgment is final because the defendant has been convicted and sentenced. As a consequence, the statutory provisions of section 8\u20145 are determinative of the issue on appeal. Accordingly, we find that the trial court properly granted the defendant\u2019s motion to dismiss the first degree murder charges because the defendant had a final judgment and conviction entered on the inchoate offense of conspiracy. Thus, no judgment of conviction or sentence could be entered on the principal offense of first degree murder.\nFor the reasons stated, the judgment of the circuit court of Will County is affirmed.\nAffirmed.\nHOMER and SLATER, JJ., concur.", "type": "majority", "author": "JUSTICE McCUSKEY" } ], "attorneys": [ "James Glasgow, State\u2019s Attorney, of Joliet (John X. Breslin and Gary F. Gnidovec (argued), both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People.", "Edward A. Burmila, Jr. (argued), of Burmila & Thomas, P.C., of Joliet, for appellee." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ALBERTO GOMEZ, JR., Defendant-Appellee.\nThird District\nNo. 3\u201496\u20140523\nOpinion filed January 7, 1997.\nJames Glasgow, State\u2019s Attorney, of Joliet (John X. Breslin and Gary F. Gnidovec (argued), both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People.\nEdward A. Burmila, Jr. (argued), of Burmila & Thomas, P.C., of Joliet, for appellee." }, "file_name": "0232-01", "first_page_order": 250, "last_page_order": 254 }