People v. Miller, 406 Ill. 446 (1950)

Sept. 21, 1950 · Illinois Supreme Court · No. 31403

406 Ill. 446

(No. 31403.

The People of the State of Illinois, Defendant in Error, vs. Fred Miller, Plaintiff in Error.

Opinion filed September 21, 1950.

Fred Miller, pro se.

Ivan A. Elliott, Attorney General, of Springfield, and Robert F. Smith, State’s Attorney, of Greenville, (Harry L. Pate, of Tuscola, of counsel,) for the People.

Mr. Justice Fulton

delivered the opinion of the court:

On July 13, 1936, plaintiff in error entered a plea of guilty in the circuit court of Bond County to the charge of burglary and larceny, as set forth in the first count of an indictment. A charge of prior conviction of larceny was also included in said count. The court found plaintiff in error guilty of burglary and larceny as charged in the first count of the indictment and sentenced him to imprisonment in the penitentiary “there to remain until discharged according to law.” He has brought the common-law record here for review by writ of error and appears pro se.

Plaintiff in error argues that the plea of guilty in this cause was to the crime of burglary and larceny and not to the habitual portion of the first count charging prior conviction. To this contention there appears to be no controversy. The People very properly concede in their brief that the record filed herein clearly shows the plaintiff in error was convicted of burglary and larceny and was not convicted under the Habitual Criminal Act; that the penalty prescribed by law in the instant case is written into the judgment of the court and the defendant is lawfully serving an indeterminate sentence of from one year to life for the crime of burglary and larceny.

Plaintiff in error states in his brief, without any corroboration in the record, that the Division of Correction takes the position that defendant was sentenced under the Habitual Criminal Act.

In the absence of any finding in the judgment that defendant had been previously convicted or that he admitted such prior conviction, no judgment under the Habitual Criminal Act could lawfully be entered. People v. Langford, 392 Ill. 584.

The judgment in this case very properly found plaintiff in error guilty of the crime of burglary and larceny, and he is now lawfully serving an indeterminate sentence of from one year to life in the Illinois State Penitentiary for that specific crime. The judgment and sentence of the, circuit court of Bond County is affirmed.

Judgment affirmed.