{ "id": 4275797, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY LEWIS, Defendant-Appellant", "name_abbreviation": "People v. Lewis", "decision_date": "2008-03-03", "docket_number": "No. 1-06-1073", "first_page": "829", "last_page": "838", "citations": [ { "type": "official", "cite": "379 Ill. App. 3d 829" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "838 N.E.2d 247", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2005, "opinion_index": 0 }, { "cite": "361 Ill. App. 3d 750", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4259105 ], "year": 2005, "pin_cites": [ { "page": "762" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/361/0750-01" ] }, { "cite": "609 N.E.2d 1004", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "242 Ill. App. 3d 399", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5118840 ], "weight": 4, "year": 1993, "pin_cites": [ { "page": "402" }, { "page": "402" }, { "page": "402" }, { "page": "402" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/242/0399-01" ] }, { "cite": "438 N.E.2d 952", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "pin_cites": [ { "parenthetical": "\"It was error to continue the trial with respect to count IX after the court had directed the verdict on that count in defendant's favor\"" } ], "opinion_index": 0 }, { "cite": "108 Ill. App. 3d 96", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3014362 ], "year": 1982, "pin_cites": [ { "page": "100", "parenthetical": "\"It was error to continue the trial with respect to count IX after the court had directed the verdict on that count in defendant's favor\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/108/0096-01" ] }, { "cite": "721 N.E.2d 524", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "pin_cites": [ { "parenthetical": "The trial court did not grant the defendant's motion for a finding of not guilty. \"The trial judge's statements were equivocal and amounted merely to a determination to hold the ruling on defendant's motion in abeyance until the following day\"" } ], "opinion_index": 0 }, { "cite": "188 Ill. 2d 293", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 535900 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "306", "parenthetical": "The trial court did not grant the defendant's motion for a finding of not guilty. \"The trial judge's statements were equivocal and amounted merely to a determination to hold the ruling on defendant's motion in abeyance until the following day\"" }, { "page": "306" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/188/0293-01" ] }, { "cite": "457 N.E.2d 136", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "119 Ill. App. 3d 832", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3630450 ], "weight": 5, "year": 1983, "pin_cites": [ { "page": "834" }, { "page": "835" }, { "page": "835" }, { "page": "835" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/119/0834-01" ] }, { "cite": "430 U.S. 564", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12126181 ], "weight": 6, "year": 1977, "pin_cites": [ { "page": "571" }, { "page": "651" }, { "page": "1355" }, { "page": "571" }, { "page": "651" }, { "page": "1355" } ], "opinion_index": 0, "case_paths": [ "/us/430/0564-01" ] }, { "cite": "789 N.E.2d 274", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "204 Ill. 2d 267", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 609687 ], "weight": 5, "year": 2003, "pin_cites": [ { "page": "283" }, { "page": "284" }, { "page": "287-88" }, { "page": "287" }, { "page": "288" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/204/0267-01" ] }, { "cite": "459 N.E.2d 667", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "121 Ill. App. 3d 457", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3560148 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/ill-app-3d/121/0457-01" ] }, { "cite": "437 U.S. 54", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6177463 ], "weight": 3, "year": 1978, "opinion_index": 0, "case_paths": [ "/us/437/0054-01" ] }, { "cite": "741 N.E.2d 255", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "194 Ill. 2d 88", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1096309 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "92" }, { "page": "92" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/194/0088-01" ] }, { "cite": "592 N.E.2d 342", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1992, "opinion_index": 0 }, { "cite": "227 Ill. App. 3d 795", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5796885 ], "weight": 7, "year": 1992, "pin_cites": [ { "page": "798" }, { "page": "798" }, { "page": "798-99" }, { "page": "796" }, { "page": "799" }, { "page": "799" }, { "page": "799" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/227/0795-01" ] }, { "cite": "801 N.E.2d 1115", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "344 Ill. App. 3d 949", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3777853 ], "weight": 6, "year": 2003, "pin_cites": [ { "page": "954" }, { "page": "952-53" }, { "page": "953" }, { "page": "953" }, { "page": "956" }, { "page": "956" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/344/0949-01" ] }, { "cite": "805 N.E.2d 1200", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2004, "opinion_index": 0 }, { "cite": "209 Ill. 2d 19", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5461527 ], "year": 2004, "pin_cites": [ { "page": "27" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/209/0019-01" ] } ], "analysis": { "cardinality": 816, "char_count": 21014, "ocr_confidence": 0.759, "pagerank": { "raw": 4.6922169990516086e-08, "percentile": 0.2945866728137432 }, "sha256": "aca932cd4b52d0617bb9ec8b27206590e9b282f38550682e5ffe342d91124c85", "simhash": "1:3be85136f54697ed", "word_count": 3529 }, "last_updated": "2023-07-14T21:50:11.340315+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY LEWIS, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE WOLFSON\ndelivered the opinion of the court:\nDefendant Anthony Lewis was charged with delivery of heroin (count III) and possession of cocaine with intent to deliver (count IV). Following a sentencing hearing, the trial court imposed a six-year prison sentence on count III. The only issue in this appeal is whether the trial court had acquitted defendant of count III, rendering the sentence void. We conclude the trial court found the defendant not guilty of the charge in count III. We vacate the defendant\u2019s sentence on that count and remand for sentencing on count IV possession only.\nFACTS\nDetective Jeanne Radjenovich testified that on March 2, 2005, she was the surveillance officer on a narcotics team. From her vantage point less than a block away, she saw defendant conduct hand-to-hand transactions with various people. She radioed undercover Officer McCann. She told McCann to come through the alley and try to make a controlled purchase from defendant. Detective Radjenovich saw Officer McCann talk to defendant and saw her drive around the block. When Officer McCann returned, defendant put his hand into her car and walked away. A short time later, the enforcement officers arrested defendant. The officers recovered $10 from defendant, but not the prerecorded funds used during the transaction.\nOfficer Kathleen McCann testified she drove into the alley and saw defendant, who matched the surveillance officer\u2019s description of the suspect. She asked defendant for two \u201cblows,\u201d a street term for heroin. He told her to drive around the block and meet him in the alley, which she did. Defendant handed her clear plastic bags containing foil packets, and she gave him $20 in prerecorded funds. She then drove away and radioed the other officers that a narcotics transaction had occurred. Officer McCann identified defendant after he was detained.\nOfficer Michael Kublida, an enforcement officer, testified that Sergeant Nunez and Officer Roman had already detained defendant when he arrived at the scene. During defendant\u2019s custodial search, the officers recovered $10 and a clear plastic bag containing a white rock-like substance they suspected was cocaine. No heroin was found in defendant\u2019s possession. Officer Kublida admitted he attested to the police report completed after defendant\u2019s arrest, but he did not read it.\nThe parties stipulated that Sergeants Roman and O\u2019Shea would testify their arrest report stated they recovered prerecorded funds from defendant. No prerecorded funds were recovered. The parties also stipulated that the State forensic chemist would testify the substances tested were less than .1 gram of cocaine and .3 grams of heroin.\nAfter the State rested, defendant made a motion for a directed finding, which the court denied as to count III. As to count I\\f the court found the State had not met its burden of proof with regard to the intent to deliver element and thus proceeded with count IV being the lesser-included offense of possession of cocaine.\nOn February 9, 2006, following closing arguments, the court said: \u201cThe court finds that the State has met its burden of proof with regard to Count No. 3 and also the remaining part of Count No. 4. The court finds that the identification of the Defendant by both surveillance officers and the undercover officers was strong and positive.\nWith regard to the transactions, details culminating in Count No. 3 which is the delivery of a controlled substance, again, the Court finds that the State has met its burden of proof, and that in fact the Defendant delivered some items containing a substance containing heroin to the undercover officers.\nWith regard to Count No. 4, possession of a controlled substance, the Court finds that a clear, plastic bag containing cocaine was found on the Defendant\u2019s person.\nThe Court finds that the impeachment that was generated during the examination of the enforcement officer was for post arrest and post transaction activities, but I do find based on all of the evidence and all of the testimony that the State has met its burden of proof that this item containing cocaine was found on Mr. Lewis\u2019 person, and the impeachment does not rise to the level of that.\nThe State has not met its burden of proof. As a result, there would be a finding of not guilty for Count No. 3. There would be a finding of guilty as to Count No. 4, PCS only.\u201d\nThe assistant State\u2019s Attorney did not ask the trial court any questions about its \u201cfindings.\u201d The half-sheet entry on February 9, 2006, says \u201cf/g (DCS Ct 3) & 4 \u2014 PCS only (Ct 4).\u201d The State does not contest the accuracy of the transcript of the trial court\u2019s words.\nAt defendant\u2019s sentencing hearing on March 15, 2006, the State observed defendant was convicted of both counts III and IV Defendant did not object to the State\u2019s recitation of his convictions. The court sentenced defendant as a Class X offender to six years in prison. Specifically, the court said, \u201cNow, that is a sentence on Count 3, which is the delivery of a controlled substance count. Count 4 will be merged into Count 3 for purposes of sentencing.\u201d Defense counsel did not question the trial court\u2019s authority to sentence the defendant on count III, the heroin delivery charge. Defendant appeals.\nDECISION\nI. Void Sentence\nThe parties frame this dispute as a double jeopardy issue. The double jeopardy clauses contained in the United States and Illinois Constitutions prohibit a person from being put in jeopardy twice for the same offense. U.S. Const., amend. V; Ill. Const. 1970, art. I, \u00a710. The issue may be simpler than that. The question that controls the outcome of this case is whether the trial court found defendant guilty or not guilty of count III. If it found defendant not guilty, the sentence on that count would be void. We look to the double jeopardy decisions to guide our analysis.\nDefendant contends the six-year sentence is void because the court sentenced him for delivery of a controlled substance after it acquitted him of that offense.\nInitially, we reject the State\u2019s contention that defendant waived this issue by failing to raise it in a written posttrial motion. Waiver generally does not apply where the judgment is challenged as void. People v. Thompson, 209 Ill. 2d 19, 27, 805 N.E.2d 1200 (2004). Furthermore, the propriety of an alleged acquittal necessarily implicates substantial rights requiring our review. People v. Allen, 344 Ill. App. 3d 949, 954, 801 N.E.2d 1115 (2003).\nA defendant is acquitted of an offense when a trial judge finds the evidence insufficient at trial and finds the defendant not guilty. People v. Brown, 227 Ill. App. 3d 795, 798, 592 N.E.2d 342 (1992). \u201c[A] judgment of acquittal stemming from an evidentiary hearing, however erroneous, bars further prosecution on any aspect of the charge.\u201d People v. Carter, 194 Ill. 2d 88, 92, 741 N.E.2d 255 (2000), citing Sanabria v. United States, 437 U.S. 54, 57 L. Ed. 2d 43, 98 S. Ct. 2170 (1978). Whether the trial judge made a mistake of fact or law when entering an acquittal is irrelevant. Brown, 227 Ill. App. 3d at 798, citing People v. Poe, 121 Ill. App. 3d 457, 459 N.E.2d 667 (1984). An acquittal, however, only triggers the bar against double jeopardy if it \u201c \u2018actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.\u2019 \u201d People v. Henry, 204 Ill. 2d 267, 283, 789 N.E.2d 274 (2003), quoting United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 51 L. Ed. 2d 642, 651, 97 S. Ct. 1349, 1355 (1977).\nIn People v. Vilt, 119 Ill. App. 3d 832, 457 N.E.2d 136 (1983), the defendant was charged with rape, aggravated kidnapping, and two counts of deviate sexual assault. At the close of the State\u2019s case, the defendant moved for a directed verdict on the count charging deviate sexual assault based on the act of sodomy. The following colloquy occurred:\n\u201c \u2018THE COURT: That motion will be allowed.\nMR. GERTS (The assistant State\u2019s Attorney): May I ask why?\nTHE COURT: Wasn\u2019t any evidence of anal sodomy.\nMR. GERTS: I think she testified that \u2014 Theresa testified of the contact.\nTHE COURT: Or am I thinking, am I thinking of the other girl?\nMR. GERTS: Tami George there was no anal act with.\nTHE COURT: I am sorry, I am sorry, I am talking, I am thinking of Tami George, that is right.\nTHE COURT: That motion will be denied.\nMR. KIELIAN [defense counsel]: Could I be\u2014\nTHE COURT: Yes you may be heard on it but I am sorry, I had the wrong, the wrong cases.\u2019 \u201d Vilt, 119 Ill. App. 3d at 834.\nAfter the defendant was convicted of one count of deviate sexual assault, he filed a motion to vacate the judgment. The trial court granted the motion, finding the defendant had been placed in double jeopardy.\nThe appellate court reversed, holding that because the trial court allowed but then denied the directed verdict \u201cvirtually with the same breath,\u201d the defendant never was acquitted of the charge. Vilt, 119 Ill. App. 3d at 835. Because no passage of time intervened, the court held there \u201csimply was no directed verdict to reinstate when the defendant\u2019s post-trial motion to vacate was granted.\u201d Vilt, 119 Ill. App. 3d at 835. See also People v. Williams, 188 Ill. 2d 293, 306, 721 N.E.2d 524 (1999) (The trial court did not grant the defendant\u2019s motion for a finding of not guilty. \u201cThe trial judge\u2019s statements were equivocal and amounted merely to a determination to hold the ruling on defendant\u2019s motion in abeyance until the following day\u201d).\nIn Allen, the defendant was charged with two separate counts of aggravated discharge of a firearm \u2014 count V in regard to Gloria Rainge and count VI in regard to Cortez Mukes. The trial court granted a motion for a directed finding as to count VI. When the trial court entered its finding of guilt at the close of the case, it said:\n\u201c \u2018Based on the evidence presented, *** it\u2019s pretty clear to me that Miss Rainge was right in the area of the car when the car was struck with the bullet, just apparently a car length away when shots were fired. Now, with regard to the aggravated discharge of a firearm, finding of not guilty. *** I have no idea where Mr. Mukes was, again, that was a finding of not guilty.\u2019 \u201d (Emphasis added.) Allen, 344 Ill. App. 3d at 952-53.\nBefore the defendant\u2019s posttrial hearing began, the court addressed the parties, stating:\n\u201c T just want the record to reflect that the defendant was found guilty of three counts. Finding guilty of aggravated discharge of a firearm was count five, *** although reviewing the transcript it doesn\u2019t really make [it] clear. But I just want the record to reflect that the defendant was found guilty of count five, aggravated discharge of a firearm in regards to Gloria Rainge. As to count six with regard to aggravated discharge of a firearm with regard to Mr. [Mukes], he was found not guilty.\u2019 \u201d Allen, 344 Ill. App. 3d at 953.\nOn appeal, the defendant contended his conviction for aggravated discharge of a firearm was barred because the trial court initially found him not guilty as to count five (\u201c \u2018Now, with regard to the aggravated discharge of a firearm, finding of not guilty\u2019 \u201d (Allen, 344 Ill. App. 3d at 953)), then clarified its ruling finding him guilty of the offense. Rejecting the defendant\u2019s argument, the court held an examination of the record as a whole revealed the trial court did, in fact, find defendant guilty of count V Because the trial court never specified which count it was entering its finding on, the court held the defendant was never actually acquitted on count V and the judge\u2019s finding of not guilty pertained only to count VI. Allen, 344 Ill. App. 3d at 956. The court held its conclusion was supported by the trial court\u2019s half-sheet notations and its clarification of the somewhat ambiguous court reporter\u2019s transcript of its findings. Allen, 344 Ill. App. 3d at 956.\nBy contrast, in People v. Brown, 227 Ill. App. 3d 795, 798-99, 592 N.E.2d 342 (1992), the defendant was charged with armed violence based on possession of a controlled substance with intent to deliver. At the close of the State\u2019s case, the defendant moved for a directed verdict. In ruling on the motion, the trial court said:\n\u201c[T]he Court cannot find that the Defendant possessed cocaine with intent to deliver and as to that charge, the Defendant is found not guilty of the greater offense of possession with intent to deliver. *** Having found the Defendant not guilty of the offense of possession with intent to deliver[,] it follows that he was not armed with a dangerous weapon while committing that offense, and the Defendant is found not guilty of Count 1.\u201d (Emphasis omitted.) Brown, 227 Ill. App. 3d at 796.\nThe State contended that even though the judge found the defendant not guilty of possession with intent to deliver, the armed violence charge could be based on the lesser-included offense of possession. The judge agreed with the State and denied defendant\u2019s motion for a directed verdict. Defendant was subsequently found guilty of armed violence and possession of a controlled substance.\nThe appellate court reversed defendant\u2019s conviction, holding the trial court\u2019s initial ruling on the directed verdict was \u201can acquittal based on insufficient evidence which the trial judge could not reconsider.\u201d Brown, 227 Ill. App. 3d at 799. Distinguishing Vilt, the court held the trial judge\u2019s ruling was \u201cnot equivocal.\u201d Brown, 227 Ill. App. 3d at 799. The trial judge specifically found the evidence was insufficient, that the defendant was not guilty of armed violence. Brown, 227 Ill. App. 3d at 799. See also People v. Stout, 108 Ill. App. 3d 96, 100, 438 N.E.2d 952 (1982) (\u201cIt was error to continue the trial with respect to count IX after the court had directed the verdict on that count in defendant\u2019s favor\u201d).\nIn Henry, the question presented was whether the trial court\u2019s oral grant of defendant\u2019s motion for directed verdict on the charge of aggravated battery was an \u201cunequivocal judgment of acquittal.\u201d Henry, 204 Ill. 2d at 284. The defendant was charged with involuntary manslaughter and aggravated battery. At the close of the evidence, defendant moved for a directed verdict on both counts. The trial court granted the directed verdict as to the aggravated battery charge. After the State then sought leave to appeal the court\u2019s ruling, the court vacated its previous order and reserved ruling on the directed verdict. The court subsequently denied defendant\u2019s motion for directed verdict on both charges. The jury found defendant guilty of aggravated battery.\nDistinguishing Williams, our supreme court held that, under the specific facts of the case, the trial judge unequivocally granted the defendant\u2019s motion for a directed finding on the aggravated battery charge. Henry, 204 Ill. 2d at 287-88. Unlike Williams, the judge in Henry neither indicated willingness to examine additional authority nor offered to postpone the ruling until the parties had an opportunity to present legal authority. Henry, 204 Ill. 2d at 287. Because the acquittal represented a resolution of \u201c \u2018some or all of the factual elements of the offense charged,\u2019 \u201d the principles of double jeopardy barred the aggravated battery charge from being presented to the jury. Henry, 204 Ill. 2d at 288, quoting Martin Linen Supply Co., 430 U.S. at 571, 51 L. Ed. 2d at 651, 97 S. Ct. at 1355.\nHere, the State contends the trial court\u2019s comments, viewed in their entirety, clearly indicate it intended to convict defendant of count III and simply \u201cmisspoke\u201d when restating its findings.\nThe State has not been consistent when addressing the specificity of the trial judge\u2019s findings. While this appeal was pending, it filed a motion for limited remand for the circuit court to clarify the record pursuant to Supreme Court Rule 329 (210 Ill. 2d R. 329), contending \u201cthe People have reviewed the record on appeal and determined that it is unclear whether defendant was convicted of Count 3 and the remaining portion of Count 4, or only on the remaining portion of Count 4.\u201d (Emphasis added.) Rule 329 provides limited remand for the purposes of clarifying the record. It is used when: (1) there is a question regarding whether the record \u201caccurately discloses what occurred in the trial court\u201d; (2) the record contains \u201cmaterial omissions\u201d or \u201cinaccuracies\u201d; or (3) the record is improperly authenticated. 210 Ill. 2d R. 329. The State never contended the record was inaccurate or contained \u201cmaterial omissions.\u201d Nor did it contend that the trial court\u2019s findings were inaccurately disclosed. Instead, the State sought remand for the sole purpose of allowing the trial court to clarify its intentions when declaring the not guilty finding on count III. That is not provided for in Rule 329. We denied the State\u2019s motion.\nNow, in this appeal, the State contends the court\u2019s notation on the half-sheet, defendant\u2019s sentencing hearing, and defendant\u2019s mittimus constitute evidence that the trial court simply misspoke when declaring defendant not guilty. The half-sheet entry on February 9, 2006, says \u201cf/g (DCS Ct 3) & 4 \u2014 PCS only (Ct 4),\u201d which the State contends reflects a finding of guilty on count III. The State has abandoned the position it took in its motion for remand.\nA judge\u2019s oral pronouncement is the judgment of the court. People v. Smith, 242 Ill. App. 3d 399, 402, 609 N.E.2d 1004 (1993). A written order of commitment is merely evidence of that judgment. Smith, 242 Ill. App. 3d at 402. When a trial court\u2019s oral pronouncement conflicts with its written judgment, the oral pronouncement controls. People v. Savage, 361 Ill. App. 3d 750, 762, 838 N.E.2d 247 (2005); Smith, 242 Ill. App. 3d at 402. We find the trial court\u2019s oral finding determines the outcome of this case.\nUnlike Allen and Williams, there was nothing ambiguous or equivocal in the trial court\u2019s findings. We recognize the trial court first indicated the State had \u201cmet its burden of proof with regard to Count No. 3.\u201d But the trial court used the word \u201cfinding\u201d once and only once \u2014 when saying \u201cthere would be a finding of not guilty for Count No. 3,\u201d just after saying \u201cThe State has not met its burden of proof,\u201d and just before saying \u201cThere would be a finding of guilty as to Count No. 4, PCS only.\u201d\nIt is the trial court\u2019s \u201cfinding\u201d that controls. Smith, 242 Ill. App. 3d at 402. There was nothing equivocal about it. If the State had any concerns about that finding, it should have said so when it was pronounced.\nWThile the State suggests we should ignore the acquittal because the trial court simply \u201cmisspoke,\u201d we note \u201ca judgment of acquittal stemming from an evidentiary ruling, however erroneous, bars further prosecution on any aspect of the charge.\u201d See Carter, 194 Ill. 2d at 92. The trial court\u2019s \u201cfinding of not guilty\u201d represented an unequivocal resolution of some or all of the elements of the offense charged.\nUnlike the first ruling in Vilt, defendant\u2019s acquittal in this case stood unchallenged for a significant length of time. The judge sentenced defendant on count III on March 15, 2006, more than a month after his finding of acquittal on the same charge \u2014 a far cry from the \u201cvirtually with the same breath\u201d that passed before the trial court corrected its finding in Vilt. See Vilt, 119 Ill. App. 3d at 835. Nor was the trial court holding a ruling on the guilt or innocence issue \u201cuntil the following day.\u201d Williams, 188 Ill. 2d at 306. We find the length of time defendant\u2019s acquittal was allowed to stand unchallenged in this case supports our conclusion.\nBecause the trial court acquitted defendant of delivery of a controlled substance and then improperly sentenced him for that same offense, we find the sentence is void. A judgment of not guilty on count III must be entered by the trial court.\nII. Mittimus\nDefendant contends his mittimus must be amended to correctly reflect that he was subject to mandatory Class X sentencing based on his conviction on count III rather than count II. Because we vacate defendant\u2019s sentence and remand his case for a new sentencing hearing consistent with our findings, we need not consider this issue. On remand, the trial court should sentence defendant only on the remaining possession of the cocaine possession charge contained in count IV\nCONCLUSION\nWe vacate defendant\u2019s sentence on count III, order that the mittimus reflect a finding of not guilty on count III, and remand the case for a new sentencing hearing on count I\\( possession only, consistent with our findings.\nVacated and remanded.\nCAHILL, EJ., and R. GORDON, J., concur.", "type": "majority", "author": "JUSTICE WOLFSON" } ], "attorneys": [ "Michael J. Pelletier and Lauren A. Bauser, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (James E. Fitzgerald, Alan J. Spellberg, and Margaret M. Smith, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY LEWIS, Defendant-Appellant.\nFirst District (1st Division)\nNo. 1\u201406\u20141073\nOpinion filed March 3, 2008.\nRehearing denied April 3, 2008.\nMichael J. Pelletier and Lauren A. Bauser, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (James E. Fitzgerald, Alan J. Spellberg, and Margaret M. Smith, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0829-01", "first_page_order": 845, "last_page_order": 854 }