{
  "id": 3161650,
  "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MODESTO MONTES, Defendant-Appellant",
  "name_abbreviation": "People v. Montes",
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  "casebody": {
    "judges": [],
    "parties": [
      "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MODESTO MONTES, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE JIGANTI\ndelivered the opinion of the court:\nModesto Montes, the appellant, was convicted of a felony and was sentenced to five years\u2019 probation. No probation revocation proceeding has been instituted against him. Montes filed a petition for post-conviction relief under the Post-Conviction Hearing Act. (Ill. Rev. Stat. 1977, ch. 38, par. 122 \u2014 1.) The trial court granted the State\u2019s motion to dismiss the petition on the ground that Montes was not imprisoned in the penitentiary as required under the Act. The Post-Conviction Hearing Act provides in part:\n\u201cAny person imprisoned in the penitentiary who asserts that in the proceedings which resulted in his conviction there was a substantial denial of his rights under the Constitution of the United States or of the State of Illinois or both may institute a proceeding under this Article.\u201d (Emphasis added.)\nThe Post-Conviction Hearing Act provides one of the three statutory methods of collaterally attacking a judgment. (People v. Warr (1973), 54 Ill. 2d 487, 298 N.E.2d 164.) The Act has been liberally construed to afford a convicted person an opportunity to present questions of deprivation of constitutional rights. People v. Pier (1972), 51 Ill. 2d 96, 281 N.E.2d 289.\nThe words \u201cimprisoned in the penitentiary\u201d have been liberally construed. In People v. Davis (1968), 39 Ill. 2d 325, 235 N.E.2d 634, the defendant filed a petition under the Act while imprisoned in the penitentiary, but the petition was not heard until after the defendant had served his term. The court reversed the dismissal of the petition. It stated that there were advantages to purging oneself of the stigma and disabilities which attended a criminal conviction and that it saw \u201cno reason to so narrowly construe this remedial statute as to preclude the remedy in every case in which the petition is not filed and the hearing completed before imprisonment ends.\u201d Davis, 39 Ill. 2d 325, 329, 235 N.E.2d 634, 636.\nIn another case, also entitled People v. Davis (1973), 54 Ill. 2d 494, 298 N.E.2d 161, the court further construed the words \u201cimprisoned in the penitentiary.\u201d The court held that the defendant was entitled to petition under the Post-Conviction Hearing Act to inquire into the constitutionality of a plea of guilty to a misdemeanor, that is, an offense not punishable in the penitentiary, where that conviction on the plea of guilty to the misdemeanor led to a finding of violation of probation on a felony case. In discussing the legislative intent the court stated that the phrase \u201cimprisoned in the penitentiary\u201d was meant to distinguish between persons convicted of minor offenses and those convicted of serious crimes, and that \u201c[i]t was the intent of the legislature to allow persons convicted of serious crimes, that is, crimes punishable by imprisonment in the penitentiary to avail themselves of the provisions of this remedial statute.\u201d (Emphasis added.) Davis, 54 Ill. 2d 494, 496, 298 N.E.2d 161, 163.\nThe most significant case for purposes of our inquiry into the interpretation of the words \u201cimprisoned in the penitentiary\u201d is People v. Warr (1973), 54 Ill. 2d 487, 298 N.E.2d 164. The court there held that although misdemeanants are never imprisoned in a penitentiary and thus are not entitled to relief under the Act, they are nonetheless entitled to some post-conviction relief. It fashioned a remedy in the nature of that provided by the Act. Moreover, the court held that the misdemeanant need not be sentenced to imprisonment in order to be entitled to relief. The court reasoned that its holding was \u201cappropriate, if not imperative\u201d in light of several recent United States Supreme Court opinions which rejected distinctions based upon nature of offense or length of sentence as a ground for denying procedural rights guaranteed by the fourteenth amendment. Warr, 54 Ill. 2d 487, 492, 298 N.E.2d 164, 166.\nIf a misdemeanant is entitled to a collateral hearing to question the constitutionality of the procedures used to commit him, even though he is not confined, it seems patent that a person convicted of a felony is also so entitled. The later Davis case, in the context of a defendant who had already served his term before his petition was heard, held that the Act should not be so narrowly construed so that it requires a defendant to be actually imprisoned at the time relief is sought. (Davis, 54 Ill. 2d 494, 496, 298 N.E.2d 161, 163.) It was the intent of the legislature to allow persons convicted of crimes \u201cpunishable by imprisonment\u201d to have a post-conviction remedy. (Davis, 54 Ill. 2d 494, 496, 298 N.E.2d 161, 163.) We believe a defendant convicted of a felony and placed on probation is a person \u201cimprisoned in the penitentiary\u201d within the contemplation of the Act.\nThe judgment is reversed and the cause is remanded to the circuit court of Cook County for further proceedings.\nReversed and remanded.\nJOHNSON and ROMITI, JJ., concur.",
        "type": "majority",
        "author": "Mr. JUSTICE JIGANTI"
      }
    ],
    "attorneys": [
      "Elliot Samuels, of Chicago, for appellant.",
      "Bernard Carey, State\u2019s Attorney, of Chicago (Marcia B. Orr, Pamela L. Gray, and John M. Hynes, Assistant State's Attorneys, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MODESTO MONTES, Defendant-Appellant.\nFirst District (4th Division)\nNo. 79-949\nOpinion filed November 6, 1980.\nElliot Samuels, of Chicago, for appellant.\nBernard Carey, State\u2019s Attorney, of Chicago (Marcia B. Orr, Pamela L. Gray, and John M. Hynes, Assistant State's Attorneys, of counsel), for the People."
  },
  "file_name": "0355-01",
  "first_page_order": 377,
  "last_page_order": 379
}