                                        2018 IL App (3d) 160478

                               Opinion filed December 6, 2018
     _____________________________________________________________________________

                                                 IN THE

                                   APPELLATE COURT OF ILLINOIS

                                           THIRD DISTRICT

                                                   2018

     THE PEOPLE OF THE STATE OF                      )       Appeal from the Circuit Court
     ILLINOIS,                                       )       of the 10th Judicial Circuit,
                                                     )       Peoria County, Illinois.
            Plaintiff-Appellee,                      )
                                                     )       Appeal No. 3-16-0478
            v. 	                                     )       Circuit No. 15-CF-506

                                                     )

     MICTAVIUS T. ROSS,                              )

                                                     )       Honorable John P. Vespa,
            Defendant-Appellant.                     )       Judge, Presiding.
     _____________________________________________________________________________

            JUSTICE SCHMIDT delivered the judgment of the court, with opinion. 

            Justice McDade concurred with the judgment and opinion. 

            Justice Wright specially concurred, with opinion.


                                                OPINION

¶1          Defendant, Mictavius T. Ross, argues that his unsentenced conviction for home invasion

     must be vacated based on one-act, one-crime principles. Defendant’s unsentenced conviction is

     not a final judgment. Consequently, we lack jurisdiction to consider its validity, and we dismiss

     defendant’s appeal.

¶2                                               FACTS

¶3          A grand jury charged defendant with attempted armed robbery (720 ILCS 5/8-4(a), 18­

     2(a)(2) (West 2014)) (count I), three counts of home invasion (id. § 19-6(a)(3)-(5)) (counts II

     through IV), and aggravated battery (id. § 12-3.05(e)(1)) (count V). Following a trial, a jury
     acquitted defendant of home invasion as charged in count II of the indictment. The jury found

     defendant guilty on the remaining charges.

¶4           At the sentencing hearing, defense counsel argued that the court should sentence

     defendant on home invasion as charged in count III of the indictment but not on home invasion

     as charged in count IV because both counts charged defendant with the same offense. Regarding

     count IV, defense counsel argued: “I think judgment is entered on it, but I don’t think it gets

     sentenced.” The State agreed. The court sentenced defendant to 4 years’ imprisonment for

     attempted armed robbery (count I), 30 years’ imprisonment for home invasion (count III), and 8

     years’ imprisonment for aggravated battery (count V). The court ordered that all the sentences

     would run concurrently with each other.

¶5           In its written order, the court set forth the three sentences it imposed at the sentencing

     hearing. The court also stated: “As to count 4, judgment only enters but judgment on sentences in

     1, 3, and 5.” In another written order titled “Judgment—Sentence to Illinois Department of

     Corrections,” the court set forth defendant’s sentences on counts I, III, and V. That order did not

     mention count IV.

¶6                                              ANALYSIS

¶7           Defendant’s sole argument on appeal is that his conviction for home invasion as charged

     in count IV of the indictment must be vacated under one-act, one-crime principles. We find that

     defendant’s unsentenced home invasion is not a final judgment, and consequently, we lack

     jurisdiction to consider its validity.

¶8           Article VI, section 6 of the Illinois Constitution grants the appellate court jurisdiction

     over final judgments of the circuit court. Ill. Const. 1970, art. VI, § 6. “The final judgment in a

     criminal case is the sentence, and, in the absence of the imposition of a sentence, an appeal


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       cannot be entertained.” People v. Caballero, 102 Ill. 2d 23, 51 (1984). See also People v.

       Relerford, 2017 IL 121094, ¶ 71; People v. Flores, 128 Ill. 2d 66, 95 (1989). Where a circuit

       court fails to impose a sentence on a conviction, “it does not follow *** that the conviction must

       be vacated. It simply means that there can be no appeal of it.” Flores, 128 Ill. 2d at 95.

¶9            Here, defendant’s conviction for home invasion as charged in count IV of the indictment

       is not a final judgment because the court did not impose a sentence on it. See Caballero, 102 Ill.

       2d at 51. Accordingly, we lack jurisdiction to consider its validity, and we must dismiss

       defendant’s appeal. See Flores, 128 Ill. 2d at 95.

¶ 10          We reject defendant’s reliance on People v. Lilly, 56 Ill. 2d 493 (1974) in support of his

       argument that we must vacate his unsentenced home invasion conviction. In Lilly, a jury found

       the defendant guilty of both rape and indecent liberties. Id. at 495. The court entered judgment

       on both verdicts but only sentenced defendant on the charge of rape. Id. On appeal, the defendant

       argued that (1) his sentence for rape was improper and (2) “the trial court erred in entering

       judgment on the verdict of guilty on the indecent liberties charge” because it was based on the

       same act as the rape charge. Id. at 495-96. The court affirmed the defendant’s sentence for rape

       but vacated his indecent liberties conviction. Id. at 497. Regarding its vacatur of the unsentenced

       indecent liberties conviction, the court reasoned:

                      “It is true that ‘The final judgment in a criminal case is a sentence’

                      [citation] and that in the absence of the imposition of sentence an appeal

                      cannot be entertained. [Citation.] However, this case is properly before us

                      on appeal with regard to the defendant’s claim as to his conviction for rape

                      and we have authority under Rule 366 to vacate the incomplete judgment

                      entered on the indecent liberties verdict. [Citations.] Accordingly we will


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                      vacate the judgment of conviction as to the count of the indictment which

                      charged the defendant with the lesser offense of indecent liberties.” Id. at

                      496.

¶ 11          In the instant case, unlike in Lilly, this case is not properly before us on appeal with

       regard to any of the sentenced convictions (i.e., final judgments) entered in this case. Rather,

       defendant’s sole contention of error is that his unsentenced home invasion conviction must be

       vacated. Accordingly, the Lilly court’s basis for exercising jurisdiction over the defendant’s

       unsentenced conviction does not apply in this case. We reject defendant’s reliance of People v.

       Bolar, 229 Ill. App. 3d 563, 568 (1992), which relied on Lilly, for the same reasons.

¶ 12                                            CONCLUSION

¶ 13          For the foregoing reasons, the appeal is dismissed for lack of jurisdiction.

¶ 14          Appeal dismissed.

¶ 15          JUSTICE WRIGHT, specially concurring:

¶ 16          I write separately because much confusion arises from careless terminology appearing in

       many records on appeal. A final judgment of conviction has two components, namely, (1) a

       finding of guilt by a trier of fact and (2) a court order finalizing the judgment of conviction by

       imposing punishment. Without both components, a final judgment does not exist for our review.

¶ 17          I recognize that it is common for attorneys and clerical personnel to refer to the jury’s

       verdict as a judgment and refer to the court’s sentencing order as the final judgment. I

       respectfully suggest it is more accurate to refer to the trier of fact’s determination as an

       adjudication of guilt. If the trial court has not imposed a sentence following the trier of fact’s

       adjudication of guilt, our court has nothing to review, reverse, or remand.

¶ 18          For these reasons, I specially concur.


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