People v. Barcik6/2/2005
now discuss the issues that they present.
Defendant argues that his convictions for two counts of DUI and two counts of DWLR violate the "one-act, one-crime" rule. Pursuant to that rule, multiple convictions are improper if based upon the same physical act. People v. Latto, 304 Ill. App. 3d 791, 806 (1999). Whether multiple convictions violate the rule is a question of law, which we review de novo. Village of Sugar Grove v. Rich, 347 Ill. App. 3d 689, 698 (2004).
Here, both of defendant's convictions for DUI were based on his drunk driving on the night of his arrest. Additionally, both of his convictions for DWLR were based on the fact that defendant's license was revoked at the time. Stated differently, defendant received multiple convictions for one act of drunken driving, and defendant received multiple convictions for one act of driving while his license was revoked. See People v. DiPace, 354 Ill. App. 3d 104, 116 (2004) (noting that DUI and DWLR are separate acts). Thus, defendant's multiple convictions for DUI, as well as his multiple convictions for DWLR, violate the "one-act, one-crime" rule. See Latto, 304 Ill. App. 3d at 806.
Apparently recognizing a problem, the trial court, at a hearing held three days after defendant was sentenced, sua sponte modified its judgment. Specifically, the trial court merged all of defendant's convictions into one count of DUI. There are two problems with the trial court's attempt to correct the judgment against defendant.
First, and dispositively, the trial court did not have jurisdiction to modify the judgment against defendant. The filing of a notice of appeal transfers jurisdiction to the appellate court instanter and simultaneously divests the trial court of jurisdiction to enter additional orders of substance. People v. Kolzow, 332 Ill. App. 3d 457, 459 (2002). Thereafter, the trial court may not enter an order modifying the judgment being appealed. People v. Slover, 339 Ill. App. 3d 1086, 1090 (2003). Here, defendant filed his notice of appeal on September 17. Thereafter, on September 18, the trial court entered its order modifying the judgment against defendant. In other words, the trial court modified the judgment after defendant had filed his notice of appeal. Thus, the trial court did not have jurisdiction to modify the judgment and its order doing so is void.
Second, in addition to being void, the trial court's modification was substantively erroneous. The trial court attempted to merge all of defendant's convictions into one count of DUI. However, DWLR does not merge into DUI. DiPace, 354 Ill. App. 3d at 117. Instead, defendant's two DUI counts should have merged into one DUI count, and his two DWLR counts should have merged into one DWLR count. Accordingly, we vacate one of defendant's convictions of DUI and one of his convictions of DWLR, leaving defendant convicted of one count each of DUI and DWLR.
The trial court sentenced defendant to seven years for DUI and an extended-term sentence of six years for DWLR. When a defendant is convicted of multiple offenses that are all part of a continuing course of conduct, he or she may be sentenced to an extended-term sentence only for those offenses that are within the most serious class. People v. Smith, 345 Ill. App. 3d 179, 190 (2004). Here, after drunkenly driving while his license was revoked, defendant was convicted of DWLR and DUI. That is, defendant was convicted of two offenses that were part of a single, continuing course of conduct. Importantly, because of defendant's prior convictions, DUI is a Class 2 felony (625 ILCS 5/11-- 501(a)(2), (c--1)(3) (West 2002)), while DWLR is a Class 4 felony (625 ILCS 5/6--303(a), (d--1) (West 2002)).
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