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People v. Tellez-Valencia11/18/1999
Agenda 6-May 1999.
JUSTICE HEIPLE delivered the opinion of the court:
Both defendants in this consolidated appeal were convicted of predatory criminal sexual assault of a child. While defendants' respective appeals were pending, this court invalidated Public Act 89-428, which created this offense. Subsequently, in case No. 85524, the appellate court reversed defendant Gomecindo Tellez-Valencia's 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's 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.
BACKGROUND
Defendants 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' convictions, and while their appeals were pending, this court held that Public Act 89-428 was enacted in violation of the single subject rule (Ill. Const. 1970, art. IV, §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 89-462, reenacting the offense of predatory criminal sexual assault of a child. Public Act 89-462 did not become effective, however, until May 29, 1996, and by its language, does not apply to offenses occurring before that date.
On 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's indictment. 295 Ill. App. 3d at 127. The Fourth District of the Appellate Court, however, reached the opposite result in defendant Moore's case, holding that the State could amend the trial court's 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's 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.
ANALYSIS
When Public Act 89-428 was held unconstitutional by this court's ruling in Johnson v. Edgar, 176 Ill. 2d 499 (1997), the offense of predatory criminal sexual assault of a child was rendered void ab initio; 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's 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' convictions for predatory criminal sexual assault of a child cannot stand.
The State argues that amendment of defendants' 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 b
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