                                                    FIRST DIVISION
                                                    March 3, 2008



No. 1-06-1073

THE PEOPLE OF THE STATE OF ILLINOIS,      )    Appeal from the
                                          )    Circuit Court of
      Plaintiff-Appellee,                 )    Cook County.
                                          )
           v.                             )
                                          )
ANTHONY LEWIS,                            )    Honorable
                                          )    Michael Brown,
      Defendant-Appellant.                )    Judge Presiding.


      JUSTICE WOLFSON delivered the opinion of the court:

      Defendant Anthony Lewis was charged with delivery of heroin

(count 3) and possession of cocaine with intent to deliver (count

4).   Following a sentencing hearing, the trial court imposed a

six-year prison sentence on count 3.    The only issue in this

appeal is whether the trial court had acquitted defendant of

count 3, rendering the sentence void.    We conclude the trial

court found the defendant not guilty of the charge in count 3.

We vacate the defendant’s sentence on that count and remand for

sentencing on count 4, possession only.

FACTS

      Detective Jeanne Radjenovich testified that on March 2,

2005, she was the surveillance officer on a narcotics team.      From

her vantage point less than a block away, she saw defendant

conduct hand-to-hand transactions with various people.    She

radioed undercover Officer McCann.   She told McCann to come
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through the alley and try to make a controlled purchase from

defendant. Detective Radjenovich saw Officer McCann talk to

defendant and saw her drive around the block.    When Officer

McCann returned, defendant put his hand into her car and walked

away.   A short time later, the enforcement officers arrested

defendant.    The officers recovered $10 from defendant, but not

the prerecorded funds used during the transaction.

     Officer Kathleen McCann testified she drove into the alley

and saw defendant, who matched the surveillance officer's

description of the suspect.    She asked defendant for two "blows,"

a street term for heroin.    He told her to drive around the block

and meet him in the alley, which she did.    Defendant handed her

clear plastic bags containing foil packets, and she gave him $20

in prerecorded funds.    She then drove away and radioed the other

officers that a narcotics transaction occurred.    Officer McCann

identified defendant after he was detained.

     Officer Michael Kublida, an enforcement officer, testified

that Sergeant Nunez and Officer Roman had already detained

defendant when he arrived at the scene.    During defendant’s

custodial search, the officers recovered $10 and a clear plastic

bag containing a white rock-like substance they suspected was

cocaine.    No heroin was found in defendant’s possession.   Officer

Kublida admitted he attested to the police report completed after




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defendant's arrest, but he did not read it.

     The parties stipulated that Sergeants Roman and O'Shea would

testify their arrest report stated they recovered prerecorded

funds from defendant.    No prerecorded funds were recovered.   The

parties also stipulated that the State forensic chemist would

testify the substances tested were less than .1 gram of cocaine

and .3 gram of heroin.

     After the State rested, defendant made a motion for a

directed finding, which the court denied as to count 3.     As to

count 4, the court found the State had not met its burden of

proof with regard to the intent to deliver element and thus

proceeded with count 4 being the lesser-included offense of

possession of cocaine.

     On February 9, 2006, following closing arguments, the court

said:

            “The court finds that the State has met its

            burden of proof with regard to Count No. 3

            and also the remaining part of Count No. 4.

            The court finds that the identification of

            the Defendant by both surveillance officers

            and the undercover officers was strong and

            positive.

                 With regard to the transactions, details




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            culminating in Count No. 3 which is the

            delivery of a controlled substance, again,

            the Court finds that the State has met its

            burden of proof, and that in fact the

            Defendant delivered some items containing a

            substance containing heroin to the undercover

            officers.

                    With regard to Count No. 4, possession

            of a controlled substance, the Court finds

            that a clear, plastic bag containing cocaine

            was found on the Defendant’s person.

                    The Court finds that the impeachment

            that was generated during the examination of

            the enforcement officer was for post arrest

            and post transaction activities, but I do

            find based on all of the evidence and all of

            the testimony that the State has met its

            burden of proof that this item containing

            cocaine was found on Mr. Lewis’ person, and

            the impeachment does not rise to the level of

            that.

                    The State has not met its burden of

            proof.    As a result, there would be a finding




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            of not guilty for Count No. 3.    There would

            be a finding of guilty as to Count No. 4, PCS

            only."

     The assistant state’s attorney did not ask the trial court

any questions about its “findings.”      The half-sheet entry on

February 9, 2006, says “f/g (DCS Ct 3) & 4 - PCS only (Ct 4).”

The State does not contest the accuracy of the transcript of the

trial court’s words.

     At defendant’s sentencing hearing on March 15, 2006, the

State observed defendant was convicted of both counts 3 and 4.

Defendant did not object to the State's recitation of his

convictions.    The court sentenced defendant as a Class X offender

to six years in prison.     Specifically, the court said, "Now, that

is a sentence on Count 3, which is the delivery of a controlled

substance count.     Count 4 will be merged into Count 3 for

purposes of sentencing."     Defense counsel did not question the

trial court’s authority to sentence the defendant on count 3, the

heroin delivery charge.     Defendant appeals.

DECISION

I. Void Sentence

     The parties frame this dispute as a double jeopardy issue.

The double jeopardy clauses contained in the United States and

Illinois Constitutions prohibit a person from being put in




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jeopardy twice for the same offense.    U.S. Const., amend. V; Ill.

Const. 1970, § 10.    The issue may be simpler than that.   The

question that controls the outcome of this case is whether the

trial court found defendant guilty or not guilty of count 3.      If

it found defendant not guilty, the sentence on that count would

be void.    We look to the double jeopardy decisions to guide our

analysis.

     Defendant contends the six-year sentence is void because the

court sentenced him for delivery of a controlled substance after

it acquitted him of that offense.

     Initially, we reject the State’s contention that defendant

waived this issue by failing to raise it in a written post-trial

motion.    Waiver generally does not apply where the judgment is

challenged as void.    People v. Thompson, 209 Ill. 2d 19, 27, 805

N.E.2d 1200 (2004).    Furthermore, the propriety of an alleged

acquittal necessarily implicates substantial rights requiring our

review.    People v. Allen, 344 Ill. App. 3d 949, 954, 801 N.E.2d

1115 (2003).

     A defendant is acquitted of an offense when a trial judge

finds the evidence insufficient at trial and finds the defendant

not guilty.    People v. Brown, 227 Ill. App. 3d 795, 798, 592

N.E.2d 342 (1992).    “A judgment of acquittal stemming from an

evidentiary hearing, however erroneous, bars further prosecution




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on any aspect of the charge.”    People v. Carter, 194 Ill. 2d 88,

92, 741 N.E.2d 255, citing Sanabria v. United States, 437 U.S.

54, 98 S. Ct. 2170, 57 L. Ed. 2d 43 (1978).    Whether the trial

judge made a mistake of fact or law when entering an acquittal is

irrelevant.    Brown, 227 Ill. App. 3d at 798, citing People v.

Poe, 121 Ill. App. 3d 457, 459 N.E.2d 667 (1984).    An acquittal,

however, only triggers the bar against double jeopardy if it “

‘actually represents a resolution, correct or not, of some or all

of the factual elements of the offense charged.’ ”    People v.

Henry, 204 Ill. 2d 267, 283, 789 N.E.2d 274 (2003), quoting

United States v. Martin Linen Supply Co., 430 U.S. 564, 569, 97

S. Ct. 1349, 1353, 51 L. Ed. 2d 642, 650 (1977).

     In People v. Vilt, 119 Ill. App. 3d 832, 457 N.E.2d 136

(1983), the defendant was charged with rape, aggravated

kidnapping, and two counts of deviate sexual assault.     At the

close of the State’s case, the defendant moved for a directed

verdict on the count charging deviate sexual assault based on the

act of sodomy.    The following colloquy occurred:

                 “THE COURT: That motion will be allowed.

                 MR. GERTS (the assistant state’s

            attorney): May I ask why?

                 THE COURT: Wasn’t any evidence of anal

            sodomy.




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                 MR. GERTS: I think she testified that-

            Theresa testified of the contact.

                 THE COURT: Or am I thinking, am I

            thinking of the other girl?

                 MR. GERTS: Tami George there was no anal

            act with.

                 THE COURT: I am sorry, I am sorry, I am

            talking, I am thinking of Tami George, thats

            right.

                                ***

                 THE COURT: That motion will be denied.

                 MR. KIELIAN [defense counsel]: Could I be-

                 THE COURT: Yes you may be heard on it but I

            am sorry, I had the wrong, the wrong cases.”

After the defendant was convicted of one count of deviate sexual

assault, he filed a motion to vacate the judgment.    The trial

court granted the motion, finding the defendant had been placed

in double jeopardy.

     The appellate court reversed, holding that because the trial

court allowed but then denied the directed verdict “virtually

within the same breath,” the defendant never was acquitted of the

charge.   Vilt, 119 Ill. App. 3d at 835.   Because no passage of

time intervened, the court held there “simply was no directed




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verdict to reinstate when the defendant’s post-trial motion to

vacate was granted.”     Vilt, 119 Ill. App. 3d at 835.    See also

People v. Williams, 188 Ill. 2d 293, 306, 721 N.E.2d 524 (1999)

(The trial court did not grant the defendant’s motion for a

finding of not guilty.    “The trial judge’s statements were

equivocal and amounted merely to a determination to hold the

ruling on defendant’s motion in abeyance until the following

day.”)

       In Allen, the defendant was charged with two separate counts

of aggravated discharge of a firearm–-count five in regards to

Gloria Rainge and count six in regards to Cortez Mukes.      The

trial court granted a motion for a directed finding as to count

six.    When the trial court entered its finding of guilt at the

close of the case, it said:

            “Based on the evidence presented, *** it’s

            pretty clear to me that Miss Range was right

            in the area of the car when the car was

            struck with the bullet, just apparently a car

            length away when shots were fired.   Now, with

            regard to the aggravated discharge of a

            firearm, finding of not guilty.   I have no

            idea where Mr. Mukes was, again, that was a

            finding of not guilty.”   (Emphasis added.)




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Before the defendant’s post-trial hearing began, the court

addressed the parties, stating:

            “I just want the record to reflect that the

            defendant was found guilty of three counts.

            Finding guilty of aggravated discharge of a

            firearm was count five, *** although

            reviewing the transcript it doesn’t really

            make [it] clear.   But I just want the record

            to reflect that the defendant was found

            guilty of count five, aggravated discharge of

            a firearm in regards to Gloria Range.   As to

            count six with regard to aggravated discharge

            of a firearm with regard to Mr. [Mukes], he

            was found not guilty.”

     On appeal, the defendant contended his conviction for

aggravated discharge of a firearm was barred because the trial

court initially found him not guilty as to count five (“Now, with

regard to the aggravated discharge of a firearm, finding of not

guilty”), then clarified its ruling finding him guilty of the

offense.    Rejecting the defendant’s argument, the court held an

examination of the record as a whole revealed the trial court

did, in fact, find defendant guilty of count five.     Because the

trial court never specified which count it was entering its




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finding on, the court held the defendant was never actually

acquitted on count five and the judge’s finding of not guilty

pertained only to count six.    Allen, 344 Ill. App. 3d at 956.

The court held its conclusion was supported by the trial court’s

half-sheet notations and its clarification of the somewhat

ambiguous court reporter’s transcript of its findings.       Allen,

344 Ill. App. 3d at 956.

     By contrast, in People v. Brown, 227 Ill. App. 3d 795, 798-

99, 592 N.E.2d 342 (1992), the defendant was charged with armed

violence based on possession of a controlled substance with

intent to deliver.    At the close of the State’s case, the

defendant moved for a directed verdict.     In ruling on the motion,

the trial court said:

            “the Court cannot find that the Defendant

            possessed cocaine with intent to deliver and

            as to that charge, the Defendant is found not

            guilty of the greater offense of possession

            with intent to deliver.   *** Having found the

            Defendant not guilty of the offense of

            possession with intent to deliver[,] it

            follows that he was not armed with a

            dangerous weapon while committing that

            offense, and the Defendant is found not




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            guilty of Count 1.”

The State contended that even though the judge found the

defendant not guilty of possession with intent to deliver, the

armed violence charge could be based on the lesser-included

offense of possession.    The judge agreed with the State and

denied defendant’s motion for a directed verdict.     Defendant was

subsequently found guilty of armed violence and possession of a

controlled substance.

     The appellate court reversed defendant’s conviction, holding

the trial court’s initial ruling on the directed verdict was “an

acquittal based on insufficient evidence which the trial judge

could not reconsider.”    Brown, 227 Ill. App. 3d at 799.

Distinguishing Vilt, the court held the trial judge’s ruling was

“not equivocal.”    Brown, 227 Ill. App. 3d at 799.   The trial

judge specifically found the evidence was insufficient, that the

defendant was not guilty of armed violence.    Brown, 227 Ill. App.

3d at 799.    See also People v. Stout, 108 Ill. App. 3d 96, 100,

438 N.E.2d 952 (1982) (“It was error to continue the trial with

respect to count IX after the court had directed the verdict on

that count in defendant’s favor.”)

     In Henry, the question presented was whether the trial

court’s oral grant of defendant’s motion for directed verdict on

the charge of aggravated battery was an “unequivocal judgment of




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acquittal.”   Henry, 204 Ill. 2d at 284.   The defendant was

charged with involuntary manslaughter and aggravated battery.     At

the close of the evidence, defendant moved for a directed verdict

on both counts.    The trial court granted the directed verdict as

to the aggravated battery charge.   After the State then sought

leave to appeal the court’s ruling, the court vacated its

previous order and reserved ruling on the directed verdict.     The

court subsequently denied defendant’s motion for directed verdict

on both charges.   The jury found defendant guilty of aggravated

battery.

     Distinguishing Williams, our supreme court held that, under

the specific facts of the case, the trial judge unequivocally

granted the defendant’s motion for a directed finding on the

aggravated battery charge.    Henry, 204 Ill. 2d at 287-88.    Unlike

Williams, the judge in Henry neither indicated willingness to

examine additional authority nor offered to postpone the ruling

until the parties had an opportunity to present legal authority.

Henry, 204 Ill. 2d at 287.   Because the acquittal represented a

resolution of “ ‘some or all of the factual elements of the

offense charged,’ ” the principles of double jeopardy barred the

aggravated battery charge from being presented to the jury.

Henry, 204 Ill. 2d at 288, quoting Martin Linen Supply Co., 430

U.S. at 571, 97 S. Ct. at 1355, 51 L. Ed. 2d at 651.




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     Here, the State contends the trial court’s comments, viewed

in their entirety, clearly indicate it intended to convict

defendant of count 3 and simply “misspoke” when restating its

findings.

     The State has not been consistent when addressing the

specificity of the trial judge’s findings.   While this appeal was

pending, it filed a motion for limited remand for the circuit

court to clarify the record pursuant to Supreme Court Rule 329,

contending “the People have reviewed the record on appeal and

determined that it is unclear whether defendant was convicted of

Count 3 and the remaining portion of Count 4, or only on the

remaining portion of Count 4.”   (Emphasis added).   Rule 329

provides limited remand for the purposes of clarifying the

record.   It is used when: (1)there is a question regarding

whether the record “accurately discloses what occurred in the

trial court;” (2) the record contains “material omissions” or

“inaccuracies;” or (3) the record is improperly authenticated.

Supreme Court Rule 329 (Official Reports Advanced Sheet No. 22

(October 26, 2006), R. 329, eff. January 1, 2006).    The State

never contended the record was inaccurate or contained “material

omissions.”   Nor did it contend that the trial court’s findings

were inaccurately disclosed.   Instead, the State sought remand

for the sole purpose of allowing the trial court to clarify its




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intentions when declaring the not guilty finding on count 3.

That is not provided for in Rule 329.    We denied the State’s

motion.

     Now, in this appeal, the State contends the court’s notation

on the half-sheet, defendant’s sentencing hearing, and

defendant’s mittimus constitute evidence that the trial court

simply misspoke when declaring defendant not guilty.    The half-

sheet entry on February 9, 2006, says “f/g (DCS Ct 3) & 4 - PCS

only (Ct 4),” which the State contends reflects a finding of

guilty on count 3.   The State has abandoned the position it took

in its motion for remand.

     A judge’s oral pronouncement is the judgment of the court.

People v. Smith, 242 Ill. App. 3d 399, 402, 609 N.E.2d 1004

(1993).   A written order of commitment is merely evidence of that

judgment.    Smith, 242 Ill. App. 3d at 402.   When a trial court’s

oral pronouncement conflicts with its written judgment, the oral

pronouncement controls.     People v. Savage, 361 Ill. App. 3d 750,

762, 838 N.E.2d 247 (2005); Smith, 242 Ill. App. 3d at 402.      We

find the trial court’s oral finding determines the outcome of

this case.

     Unlike Allen and Williams, there was nothing ambiguous or

equivocal in the trial court’s findings.    We recognize the trial

court first indicated the State had “met its burden of proof with




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regard to Count No. 3.”    But the trial court used the word

“finding” once and only once–-when saying “there would be a

finding of not guilty for Count No. 3,” just after saying “The

State has not met its burden of proof,” and just before saying

“There would be a finding of guilty as to Count No. 4, PCS only.”

     It is the trial court’s “finding” that controls.    Smith, 242

Ill. App. 3d at 402.   There was nothing equivocal about it.    If

the State had any concerns about that finding, it should have

said so when it was pronounced.

     While the State suggests we should ignore the acquittal

because the trial court simply “misspoke,” we note “[a] judgment

of acquittal stemming from an evidentiary hearing, however

erroneous, bars further prosecution on any aspect of the charge.”

See Carter, 194 Ill. 2d at 92.    The trial court’s “finding of not

guilty” represented an unequivocal resolution of some or all of

the elements of the offense charged.

     Unlike the first ruling in Vilt, defendant’s acquittal in

this case stood unchallenged for a significant length of time.

The judge sentenced defendant on count 3 on March 15, 2006, more

than a month after his finding of acquittal on the same charge–-a

far cry from the “virtually within the same breath” that passed

before the trial court corrected its finding in Vilt.    See Vilt,

119 Ill. App. 3d at 835.    Nor was the trial court holding a




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ruling on the guilt or innocence issue “until the following day.”

Williams, 188 Ill. 2d at 306.    We find the length of time

defendant’s acquittal was allowed to stand unchallenged in this

case supports our conclusion.

      Because the trial court acquitted defendant of delivery of

a controlled substance and then improperly sentenced him for that

same offense, we find the sentence is void.    A judgment of not

guilty on count 3 must be entered by the trial court.

II. Mittimus

     Defendant contends his mittimus must be amended to correctly

reflect that he was subject to mandatory Class X sentencing based

on his conviction on count 3 rather than count 2.    Because we

vacate defendant’s sentence and remand his case for a new

sentencing hearing consistent with our findings, we need not

consider this issue.   On remand, the trial court should sentence

defendant only on the remaining possession of the cocaine

possession charge contained in count 4.

CONCLUSION

     We vacate defendant’s sentence on count 3, order that the

mittimus reflect a finding of not guilty on count 3, and remand

the case for a new sentencing hearing on count 4, possession

only, consistent with our findings.

     Vacated and remanded.

     CAHILL, P.J., and R. GORDON, J., concur.



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                  REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
                      (Front Sheet to be Attached to Each Case)

  Please use               THE PEOPLE OF THE STATE OF ILLINOIS,
following form:
                                         Plaintiff-Appellee,

  Complete                       v.
    TITLE
   of Case                 ANTHONY LEWIS,

                                         Defendant-Appellant.



  Docket Nos.                             No. 1-06-1073

    COURT                             Appellate Court of Illinois
                                      First District, 1st Division
   Opinion
    Filed                                 March 3, 2008

                                      (Give month, day and year)

  JUSTICES                 JUSTICE WOLFSON delivered the opinion of the court:

                           CAHILL, P.J., and R. GORDON, J., concur.




APPEAL from the      Lower Court and Trial Judge(s) in form indicated in margin:
Circuit Court of
Cook County; the           Appeal from the Circuit Court of Cook County.
Hon.___________,
Judge Presiding.            The Hon. Michael Brown, Judge Presiding.



For APPELLANTS,      Indicate if attorney represents APPELLANTS or APPELLEES and
John Doe, of         include attorneys of counsel. Indicate the word NONE if
Chicago.             not represented.

For APPELLEES,             For Appellant, Michael J. Pelletier, Deputy Defender,
Smith and Smith,           and Lauren A. Bauser, Assistant Appellate Defender,
of Chicago                 Office of the State Appellate Defender, of Chicago.


                           For Appellee, Richard A. Devine, State's Attorney
Joseph Brown,              of Cook County, of Chicago. (James E. Fitzgerald,
of counsel).               Alan J. Spellberg, and Margaret M. Smith, of Counsel).
Also add attor-
neys for third-
party appellants
and/or appellees.

                             (USE REVERSE SIDE IF NEEDED)



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