People v. Lentz ( 1982 )

JUSTICE LONDRIGAN,

dissenting:

I dissent, for I do not see how a person can be tried and convicted before he has been charged with an offense; I have always thought that filing a charge commences rather than terminates a prosecution. I question the majority’s reasoning, which begins by relying on the circuit court’s docket sheet and ends, when the docket sheet proves insufficient, by presuming the regularity of the circuit court proceedings because those proceedings occurred.

The only indication of when the charge was filed is the date, June 17, 1981, written on the back of the ticket. To show that this date is incorrect, that the charge was filed at some other time, the majority uses the docket entry for that date, which does not mention filing the charge. The majority assumes that the ticket and the docket entry are inconsistent, but perhaps the docket entry is merely incomplete.

The docket sheet is no help, though, for it does not say when the ticket was filed. The majority therefore presumes the regularity of the proceedings, and yet this presumption would in effect explain away all jurisdictional defects. The majority believes that the charge must have been filed before June 17, 1981 — indeed, must have been filed at the outset of the case — because the case was assigned a number, a file was prepared, and the defendant was tried and convicted. This reasoning begs the question, for trial and conviction are valid only if a charge is already on file.

The majority’s presumption of regularity requires that jurisdictional objections be made before trial and conviction, or even before the assignment of a case number and the preparation of a file; an objection made after the occurrence of any of these events may be answered under the precedent created today by the reply that the case has begun and would not have begun without the filing of a charge.