Opinion
No. 3-95-0261
January 11, 1999
Appeal from the Circuit Court of the 13th Judicial Circuit, Bureau County, Illinois No. 94-CF-68, Honorable James Wimbiscus Judge, Presiding.
"Then Solomon answered and said, `Give the living child to the first woman, and by no means slay it; she is its mother.' And all Israel heard of the judgment which the king had rendered; and they stood in awe of the king, because they perceived that the wisdom of God was in him, to render justice." 1 Kings 3:27-28 (RSV).
Will justice be done this day?
In this appeal, the defendant, Edwin Ortiz, maintains that our supreme court has entered an order denying him fundamental justice and subjecting him to double jeopardy in violation of the United States Constitution. We agree. The State maintains, however, that this court is without authority to overrule a supervisory order of our supreme court, even if we must conclude that the order violates the defendant's constitutional rights. We also agree. We therefore, deny the defendant's request, the sole issue presented on this appeal, that this court enter an order holding that our previous order, an order vacated by our supreme court under its supervisory authority, is a final order not subject to review.
Factual Background
The defendant, Edwin Ortiz, was convicted by a Bureau County judge of controlled substance trafficking and sentenced to a term of imprisonment of 35 years. On direct appeal, this court reversed that conviction, holding that no rational trier of fact could have found the defendant guilty beyond a reasonable doubt. This court's unpublished Rule 23 order had the concurrence of this Justice and Justice Stouder. Justice Lytton filed a dissent. Although the order was entered of record on December 12, 1995, Justice Stouder died on December 7, 1995. The State filed a timely petition for rehearing with this court arguing inter alia, that the order was not valid because Justice Stouder had died prior to the filing of the order. That petition for rehearing was denied on January 22, 1996.
The State thereafter filed a petition for leave to appeal with our supreme court. In the petition, the State again contended that the order was invalid because of Justice Stouder's death. The petition for leave to appeal was denied by our supreme court on June 5, 1996.
On June 16, 1996, the mandate of this court was issued and spread of record, and the defendant was released from custody.
Eight months later, our supreme court issued Proctor v. Upjohn Co., 175 Ill.2d 394 (1997), wherein the court held that a decision of the appellate court in a civil case was invalid due to the fact that one of the two concurring judges had vacated his office before the opinion was filed.
On August 11, 1997, well over a year after our supreme court denied the State's petition for leave to appeal, and this court's mandate had issued causing the defendant to be released from custody, the State filed a motion for a supervisory order with our supreme court seeking to have our order vacated. The State's motion was predicated solely upon the holding in Proctor. The defendant filed a timely objection to the State's motion, contending that this court's order, after the issuance of the mandate, was final and binding. He further maintained that any attempt to reopen his case would violate the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution.
On August 26, 1997, our supreme court issued a supervisory order directing this court to vacate its order of December 12, 1995, and all subsequent orders and proceed with the appeal "in a manner not inconsistent with this court's opinion in Proctor v. Upjohn."
On December 16, 1997, this court recalled the mandate. The parties were afforded the opportunity to file supplemental briefs on the issue of the meaning of the supervisory order. The matter was scheduled for oral argument on May 20, 1998.
Analysis
The defendant maintains that the supervisory order subjected him to double jeopardy in violation of the United States Constitution. The crux of the defendant's constitutional argument is his contention that the original order of this court, finding that the evidence at trial was insufficient to support his conviction, became final and binding on June 5, 1996, when our supreme court denied the State's petition for leave to appeal. See, Burks v. United States, 437 U.S. 1 (1978) (reversal of a criminal conviction by a reviewing court based upon insufficiency of the evidence is equivalent to an acquittal in the trial court for double jeopardy purposes); See also, Dillenburg v. Hellgren, 371 Ill. 452, 456-57 (1939) (denial of petition for leave to appeal renders the judgment final); United States ex rel. Falconer v. Lane, 708 F. Supp. 202 (N.D. Ill. 1989) (denial of petition for leave to appeal by the Illinois Supreme Court renders a conviction final for res judicata purposes).
We believe that the defendant is correct. The State's petition for leave to appeal (PLA) raised the issue that the death of Justice Stouder rendered the order of this court invalid. Their petition also raised the issue of whether the order was correct in reversing the defendant's conviction based upon the failure of the State to prove him guilty beyond a reasonable doubt. By denying the State's petition for leave to appeal, our supreme court in effect ruled on, and rejected, those attacks upon this court's original order. Under the above cited authority, denial of the PLA should have precluded the State from raising those same issues in its motion for supervisory order under the doctrine of res judicata. The supervisory order, therefore, clearly subjected the defendant to double jeopardy.
Having said that, we must agree with the State's argument that we are powerless to act upon our conclusion. As the State so confidently points out to us we have no authority to overrule the supreme court or to modify its decisions. People v. Denson, 139 Ill. App.3d 914 (1985); In the interest of R.P.M., 113 Ill. App.3d 376 (1983). Justice Heiple, writing the opinion for this court in R.P.M. stated:
The threshold issue is whether an appellate court can rule that its own state Supreme Court has violated the constitution in reaching a decision. We find that we have no such authority. It is fundamental that appellate courts are without authority to overrule the Supreme Court or to modify its decisions." In the Interest of R.P.M., 113 Ill. App.3d at 379.
In short, this court is bound to follow our supreme court's supervisory order and vacate our original order, even though by doing so we are clearly violating the defendant's constitutional rights by subjecting him to double jeopardy. We looked for the wisdom of Solomon to lead us out of this dilemma. Having found none, we deny the defendant's motion to affirm our previous order. We direct the parties to proceed with the appeal. The clerk of this court will inform the parties of the date for oral argument on the merits of the appeal.
The motion of the defendant to enter an order holding that our original order is a final order which is not subject to further review is hereby denied.
MOTION DENIED.
I concur with the result reached in the judgment of the court based solely upon the narrow issue that this court is bound by the supervisory order of the supreme court.
HOMER, J., joins in the special concurrence.