People v. Hernandez

May 8, 1998

No. 2--97--0623
________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
________________________________________________________________

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of Kane County.
)
Respondent-Appellant, ) No. 91--CF--99
)
v. )
)
MANUEL F. HERNANDEZ, ) Honorable
) Philip L. DiMarzio,
Petitioner-Appellee. ) Judge, Presiding.
________________________________________________________________

JUSTICE DOYLE delivered the opinion of the court:

Petitioner, Manuel Hernandez, pleaded guilty to the unlawful
possession of a controlled substance (Ill. Rev. Stat. 1991, ch. 56
«, par. 1402(a)(2)(A) (now 720 ILCS 570/402(a)(2)(A) (West 1996))).
He petitioned for postconviction relief (see 725 ILCS 5/122--1 et
seq. (West 1996)), asserting that his conviction violated the ban
on double jeopardy. The trial court granted the petition, and the
State appeals, raising three issues: (1) whether the trial court had
jurisdiction to hear petitioner s motion to vacate his conviction
and to order his immediate release where the State had already filed
a notice of appeal; (2) whether the court erred in denying the
State s motion to strike the petition as untimely; and (3) whether
the court erred in applying retroactively the ruling of Department
of Revenue v. Kurth Ranch, 511 U.S. 767, ___, 128 L. Ed. 2d 767,
781-82, 114 S. Ct. 1937, 1948 (1994), that a tax conditioned on the
commission of a crime violates the constitutional prohibition
against successive punishments for the same offense.
Petitioner was sentenced on November 16, 1992. On January 15,
1997, represented by counsel, he filed a petition for postconviction
relief alleging a violation of the prohibition on double jeopardy.
The petition alleged that the Illinois Department of Revenue served
a notice of State tax lien on petitioner s bank account based on his
failure to pay a stamp tax plus interest under the Cannabis and
Controlled Substances Tax Act (Tax Act) (Ill. Rev. Stat. 1991, ch.
120, par. 2151 et seq. (now 35 ILCS 520/1 et seq. (West 1996))) for
the 33 grams of cocaine seized during the search of his home. The
notice of tax liability was finalized before judgment was imposed
in the criminal case. Relying on Kurth Ranch, petitioner argued
that his criminal case should have been dismissed because he had
previously been punished by the tax assessment. Thus, his
conviction and sentence constituted a second punishment for the same
offense. Finally, petitioner argued that his delay in filing the
postconviction petition was not due to his culpable negligence.
The State moved to strike the petition on the ground that it
was not filed timely. The State also responded that the ruling in
Kurth Ranch should not be applied retroactively.
The court found that the tax hearing was completed before
criminal jeopardy attached so that petitioner was subjected to
double jeopardy. The court further found that the Kurth Ranch
ruling was predictable; thus, Kurth Ranch should be applied
retroactively. Finally, the court ruled that waiver and res
judicata principles do not bar petitioner relief because of the
fundamental nature of double jeopardy protection. The court
therefore granted the postconviction petition.
The State filed a notice of appeal and, on the same date, a
motion to detain petitioner or to set bail. Petitioner subsequently
filed a motion to vacate the conviction. Following a hearing, the
court granted petitioner s motion, vacated the judgment, and ordered
petitioner s immediate release. It also denied the State s motion.
On appeal, the State first contends that the trial court lacked
jurisdiction to rule on those motions filed after the notice of
appeal. We disagree. While a timely notice of appeal divests the
circuit court of general jurisdiction, the court retains
jurisdiction to perform ministerial functions and to determine
matters that are independent of and collateral to the order being
appealed. People v. Dace, 184 Ill. App. 3d 1082, 1085 (1989). The
trial court had granted the petition for postconviction relief;
therefore, vacating the conviction and ordering petitioner s release
were ministerial functions implementing the earlier decision that
the court retained jurisdiction to perform.
The State next contends that the trial court erred in denying
the State s motion to strike the postconviction petition. People
v. Lansing, 35 Ill. 2d 247, 248 (1966), on which the State relies,
is distinguishable because there the trial court dismissed the
petition as untimely. Here, the trial court denied the motion to
strike. As petitioner notes, the trial court s ruling on a
postconviction petition should be affirmed unless it is manifestly
erroneous. People v. Caballero, 179 Ill. 2d 205, 214 (1997).
The petitioner must file the petition within three years of the
date of the conviction unless he can show that the delay was not due
to his culpable negligence. 725 ILCS 5/122--1(c) (West 1996). At
the hearing on the motion, petitioner s counsel argued that the law
was evolving, in that Kurth Ranch was decided in 1994 and United
States v. Ursery, 518 U.S. ___, 135 L. Ed. 2d 549, 116 S. Ct. 2135
(1996), was decided in 1996. Ursery limited the scope of the
Court s decisions in Kurth Ranch, United States v. Halper, 490 U.S. 435, 104 L. Ed. 2d 487, 109 S. Ct. 1892 (1989), and Austin v. United
States, 509 U.S. 602, 125 L. Ed. 2d 488, 113 S. Ct. 2801 (1993), on
both of which Kurth Ranch relied, to hold that in rem civil
forfeitures are neither punishment nor criminal for double jeopardy
purposes. See Ursery, 518 U.S. at ___, 135 L. Ed. 2d at 567-68, 116 S. Ct. at 2147. The trial court denied the motion to strike because
the cause concerned evolving law and legal doctrine and petitioner
was incarcerated.
The trial court found that the delay was not due to
petitioner s culpable negligence because of the evolving nature of
the law in the area of double jeopardy. As petitioner points out,
our supreme court did not issue an opinion addressing this issue
until February 1996, when it issued Wilson v. Department of Revenue,
169 Ill. 2d 306, 317 (1996), in which it held that the Tax Act,
under which petitioner was subjected to a tax, violated the double
jeopardy provisions of both the state and federal constitutions.
In November 1996, petitioner contacted counsel about filing the
petition, and the petition was filed in January 1997. From these
facts, we cannot say that the trial court manifestly erred in
finding that petitioner had shown that the delay in filing the
petition was not due to his culpable negligence.
Finally, the State contends that the trial court erred in
applying Kurth Ranch retroactively. The State asserts that a new
rule of constitutional law should not be applied retroactively to
cases not pending on direct review. However, that statement of law
applies only to new rules of criminal procedure (see Teague v. Lane,
489 U.S. 288, 310, 103 L. Ed. 2d 334, 356, 109 S. Ct. 1060, 1075
(1989); Griffith v. Kentucky, 479 U.S. 314, 320, 93 L. Ed. 2d 649,
656, 107 S. Ct. 708, 711 (1987)); here, however, the ruling applies
to a substantive issue: whether the trial court had the authority
to try and convict a defendant in the first place (see Griffith, 479 U.S. at 324, 93 L. Ed. 2d at 659, 107 S. Ct. at 714; United States
v. Johnson, 457 U.S. 537, 550, 73 L. Ed. 2d 202, 214, 102 S. Ct. 2579, 2587 (1982)). In such circumstances, the Court has relied
less on the technique of retroactive application than on the notion
that the prior inconsistent judgments or sentences were void ab
initio. Johnson, 457 U.S. at 550, 73 L. Ed. 2d at 214, 102 S. Ct.
at 2587; see also Ashe v. Swenson, 397 U.S. 436, 25 L. Ed. 2d 469,
90 S. Ct. 1189 (1970) (Court applied a new rule to a case pending
on a collateral attack to find that the defendant had been subjected
to double jeopardy). We therefore conclude that the trial court
correctly found that the Kurth Ranch ruling should be applied to
petitioner s cause. Thus, we affirm the trial court s judgment
granting postconviction relief.
The judgment of the Kane County circuit court is affirmed.
Affirmed.
INGLIS and BOWMAN, JJ., concur.