People v. Moran

ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Moran, 2012 IL App (1st) 111165Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v.
Caption DANIEL MORAN, Defendant-Appellee.
District & No. First District, Fourth Division
Docket No. 1-11-1165
Filed August 30, 2012
Rehearing denied October 4, 2012
Held Defendant’s convictions for both felony murder predicated on armed
(Note: This syllabus robbery and armed robbery resulted in a voidable judgment, not a void
constitutes no part of judgment, since the armed robbery conviction was an included offense,
the opinion of the court but the improper entry of a conviction on the lesser included offense of
but has been prepared armed robbery did not divest the trial court of jurisdiction; therefore,
by the Reporter of defendant’s untimely section 2-1401 petition seeking relief from the
Decisions for the judgment should have been denied.
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of Cook County, No. 96-CR-3560 (03);
Review the Hon. Brian Flaherty, Judge, presiding.
Judgment Reversed.
Counsel on Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
Appeal Matthew Connors, and Ahmed M. Baset, Assistant State’s Attorneys, of
counsel), for the People.
Michael J. Pelletier, Alan D. Goldberg, and Arianne Stein, all of State
Appellate Defender’s Office, of Chicago, for appellee.
Panel JUSTICE FITZGERALD SMITH delivered the judgment of the court,
with opinion.
Presiding Justice Lavin and Justice Sterba concurred in the judgment and
opinion.
OPINION
¶1 This is an appeal from the circuit court’s denial of the State’s motion to dismiss
defendant Daniel Moran’s pro se petition for relief from judgment pursuant to section 2-1401
of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401(f) (West 2008)). The State
contends that the circuit court erred in denying its motion to dismiss the petition because the
petition was untimely filed and because the judgment challenged thereunder was not void,
so as to permit an untimely collateral attack. For the reasons that follow, we agree with the
State and reverse the judgment of the circuit court.
¶2 I. BACKGROUND
¶3 The record reveals the following pertinent and undisputed facts. The defendant was
arrested on January 23, 1996, and together with two codefendants charged with three counts
of murder (720 ILCS 5/9-1(a)(1), (a)(2), (a)(3) (West 2008)) and one count of armed robbery
(720 ILCS 5/18-2 (West 2008)) for his involvement in the shooting of a gas station clerk,
Abdallah Al-Muhaisen. On October 17, 1997, the defendant entered into a negotiated plea
agreement with the State.1 The defendant pleaded guilty to one count of felony murder
predicated on armed robbery (720 ILCS 5/9-1(a)(3) (West 2008)) and one count of armed
robbery (720 ILCS 5/18-2 (West 2008)) in exchange for a 45-year sentence (a 39-year
sentence for felony murder and a consecutive 6-year sentence for armed robbery). In
addition, the remaining two murder charges were nol-prossed by the State.
¶4 Before the defendant accepted the plea, the circuit court admonished him in accordance
with Illinois Supreme Court Rule 402 (Ill. S. Ct. R. 402 (eff. July 1, 1997)). The court
1
The record reveals that prior to the negotiated plea agreement the parties participated in a
conference pursuant to Illinois Supreme Court Rule 402 (Ill. S. Ct. R. 402 (eff. July 1, 1997)).
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advised the defendant that by pleading guilty to first degree murder, he faced a sentence
between 20 and 60 years in prison, followed by 3 years of mandatory supervised release
(hereinafter MSR). The court further advised the defendant that by pleading guilty to armed
robbery, a Class X offense, he faced a sentence between 3 and 30 years’ imprisonment, again
followed by 3 years of MSR. The defendant indicated that he understood the charges, the
terms of the plea agreement and the potential penalties.
¶5 The circuit court further advised the defendant that by pleading guilty, he was giving up
his rights to a bench or jury trial. The court informed the defendant that if he chose to
proceed with a trial, he would have the right to be present at trial, to call witnesses in his own
defense and to confront the witnesses against him. The court also informed the defendant that
if he proceeded to trial he had the right to testify on his own behalf if he chose to do so. The
defendant stated that he understood all these rights and that he was freely and voluntarily
relinquishing them. The circuit court also asked the defendant if anybody had threatened or
promised him anything (aside from the negotiated plea agreement) in return for his plea of
guilty. The defendant responded in the negative. The parties then stipulated to the factual
basis for the defendant’s guilty plea.
¶6 On December 4, 1997, the defendant filed a pro se motion to modify or reconsider the
sentence. That motion was continued to April 30, 1998, when it was recharacterized as a
petition to withdraw the defendant’s plea and vacate his sentence. In that petition, the
defendant alleged that: (1) his plea was involuntary because counsel pressured him into
pleading guilty and (2) his sentence should be reduced to better reflect certain mitigating
factors which the defendant was not permitted to present before the circuit court. On April
23, 1999, the defendant filed a motion to withdraw the petition vacating his plea but
nevertheless asked the circuit court to reconsider his sentence for a possible reduction. The
circuit court granted the defendant’s motion to withdraw his petition but denied his motion
to reconsider the sentence. The defendant filed a notice of appeal on May 3, 1999, but then
moved to withdraw his direct appeal on November 4, 1999. The appellate court consequently
issued a special order dismissing the defendant’s appeal.
¶7 More than eight years later, on May 17, 2007, the defendant filed a pro se petition for
relief from judgment pursuant to section 2-1401 of the Code (735 ILCS 5/2-1401(f) (West
2008)), alleging that the circuit court did not have the authority to convict and sentence him
on both the armed robbery and felony murder charges since the felony murder charge was
predicated on the armed robbery charge. The defendant argued that armed robbery was a
lesser included offense of felony murder and thus could not sustain a separate conviction.
The defendant also argued that a conviction and sentence as to both offenses violated his
constitutional right against double jeopardy. The defendant therefore asserted that his
conviction and sentence for armed robbery were void and should be vacated.
¶8 After the petition was docketed and the defendant was appointed a public defender, on
July 18, 2010, the State filed a motion to dismiss the petition, arguing: (1) that the petition
was untimely; (2) that the underlying judgment (i.e., the defendant’s conviction and sentence)
should not be vacated because it was only voidable and not void, and (3) that the defendant
had forfeited his right to raise the issue where he could have made, but failed to make, the
same argument in his petition to withdraw his plea. In response, during the hearing on the
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State’s motion to dismiss, defense counsel conceded that the defendant’s section 2-1401
petition was filed beyond the two-year statutory requirement for such petitions (see 735 ILCS
5/2-1401(c) (West 2008)), but nevertheless argued that it should not be dismissed since it
alleged a void judgment, so as to permit attack outside of the statutory time period. In support
of this contention, defense counsel cited to People v. Wade, 116 Ill. 2d 1 (1987).
¶9 After hearing arguments, the circuit court granted the defendant’s requested relief and
vacated his conviction and six-year sentence for armed robbery. In doing so, the court
explained:
“Both sides have presented, I think, some pretty valid arguments[;] however[,] my
research of the case[s,] including the case that counsel recently cited a couple months
ago[,] which is Wade, I believe that this is a void sentence.”
¶ 10 The State filed a motion to reconsider the court’s judgment reiterating the arguments it
had already raised in its motion to dismiss the defendant’s section 2-1401 petition (735 ILCS
5/2-1401(f) (West 2008)). In addition, the State contended that even if the defendant’s
conviction was void, the proper remedy was to allow the defendant to vacate his plea, and
not for the circuit court to vacate his armed robbery conviction. On April 15, 2011, the circuit
court denied the State’s motion to reconsider. The State now appeals contending that the
circuit court’s order denying its motion to dismiss the defendant’s section 2-1401 petition
(735 ILCS 5/2-1401(f) (West 2008)) was made in error.
¶ 11 II. ANALYSIS
¶ 12 We begin by noting the familiar principles regarding petitions for relief from judgment
pursuant to section 2-1401 of the Code (735 ILCS 5/2-1401(f) (West 2008)). It is well settled
that when a trial court enters a judgment on the pleadings or a dismissal in a section 2-1401
proceeding, our review is de novo. People v. Vincent, 226 Ill. 2d 1, 8 (2007). Section 2-1401
provides a comprehensive, statutory procedure that allows for vacating a final judgment older
than 30 days. In re Dar. C., 2011 IL 111083, ¶ 104; see Mills v. McDuffa, 393 Ill. App. 3d
940, 945 (2009); see also Vincent, 226 Ill. 2d at 6. Section 2-1401 requires that the petition
be filed in the same proceeding in which the order or judgment was entered, but that it not
be a continuation of the original action. Vincent, 226 Ill. 2d at 6; 735 ILCS 5/2-1401(b)
(West 2008). The statute further requires that the petition be supported by affidavit or other
appropriate showing as to matters not of record. Vincent, 226 Ill. 2d at 6; 735 ILCS 5/2-
1401(b) (West 2008). Relief under section 2-1401 is predicated upon proof, by a
preponderance of evidence, of a defense or claim that would have precluded entry of the
judgment in the original action and diligence in both discovering the defense or claim and
presenting the petition. Vincent, 226 Ill. 2d at 8.
¶ 13 Most important to this appeal, the statute requires that section 2-1401 petitions be filed
within two years of the judgment’s entry, excluding time during which the petitioner is under
a legal disability or duress or the ground for relief is fraudulently concealed. 735 ILCS 5/2-
1401(c) (West 2008); see also Mills, 393 Ill. App. 3d at 945-46. The two-year limitations
period, however, does not apply to petitions brought on voidness grounds. Sarkissian v.
Chicago Board of Education, 201 Ill. 2d 95, 104 (2002).
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¶ 14 In the present case, it is undisputed that the defendant filed his section 2-1401 petition
over 7½ years after entry of the final judgment. The circuit court, however, found that the
defendant’s cause fell within the voidness exception to the two-year statutory limitations
period because during the defendant’s plea hearing, the trial court had no authority to impose
convictions and sentences on both the felony murder and the predicate armed robbery
charges. On appeal, the State argues that the circuit court was incorrect and that the order
imposing the convictions and sentences was merely voidable and therefore not subject to
defendant’s untimely section 2-1401 challenge. In the alternative, the State argues that even
if the judgment was void, the circuit court’s remedy of reducing the defendant’s sentence by
six years was made in error and that, instead, the defendant should have been permitted to
withdraw his guilty plea. For the reasons that follow, we agree with the State.
¶ 15 We begin by noting that our supreme court has “consistently held that a judgment is void
if and only if the court that entered it lacked jurisdiction.” People v. Hubbard, 2012 IL App
(2d) 101158, ¶ 16 (citing People v. Davis, 156 Ill. 2d 149 (1993)); see also People v. Coady,
156 Ill. 2d 531 (1993); In re M.W., 232 Ill. 2d 408, 414 (2009) (“[i]f a court lacks either
subject matter jurisdiction over the matter or personal jurisdiction over the parties, any order
entered in the matter is void ab initio and, thus, may be attacked at any time”); People v.
Wuebbels, 396 Ill. App. 3d 763, 766 (2009); People v. Hall, 291 Ill. App. 3d 411, 416-17
(1997).
¶ 16 In Davis, the seminal decision explaining the voidness doctrine, our supreme court
criticized the persistent carelessness in the manner in which our courts have interchangeably
employed the terms “void” and “voidable.” As the court stated:
“The term ‘void’ is so frequently employed interchangeably with the term ‘voidable’
as to have lost its primary significance. Therefore, when the term ‘void’ is used in a
judicial opinion it is necessary to resort to the context in which the term is used to
determine precisely the term’s meaning.” Davis, 156 Ill. 2d at 155.
Our supreme court then made clear that the term “void” should be reserved only for those
judgments rendered by a court that lacked jurisdiction. Davis, 156 Ill. 2d at 155. As the court
explained:
“Whether a judgment is void or voidable presents a question of jurisdiction. [Citation.]
Jurisdiction is a fundamental prerequisite to a valid prosecution and conviction. Where
jurisdiction is lacking, any resulting judgment rendered is void and may be attacked
either directly or indirectly at any time. [Citation.] By contrast, a voidable judgment is
one entered erroneously by a court having jurisdiction and is not subject to collateral
attack.” Davis, 156 Ill. 2d at 155-56.
¶ 17 The Davis court then explicitly recognized three “elements of jurisdiction”: (1) personal
jurisdiction; (2) subject matter jurisdiction, and (3) “the power to render the particular
judgment or sentence.” Davis, 156 Ill. 2d at 156. Of the third element, the court warned that
“jurisdiction or power to render a particular judgment does not mean that the judgment
rendered must be one that should have been rendered, for the power to decide carries with
it the power to decide wrong as well as to decide right.” Davis, 156 Ill. 2d at 156. Moreover,
Davis emphasized that:
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“once a court has acquired jurisdiction, no subsequent error or irregularity will oust the
jurisdiction thus acquired. Accordingly, a court may not lose jurisdiction because it
makes a mistake in determining either the facts, the law or both.” Davis, 156 Ill. 2d at
156.
¶ 18 Since Davis, our supreme court “continues to adhere to this formulation of the voidness
doctrine.” Hubbard, 2012 IL App (2d) 101158, ¶ 16 (citing In re M.W., 232 Ill. 2d at 414);
see also Coady, 156 Ill. 2d at 537; Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95,
103 (2002) (“[a] judgment, order or decree entered by a court which lacks jurisdiction of the
parties or of the subject matter, or which lacks the inherent power to make or enter the
particular order involved, is void, and may be attacked at any time or in any court, either
directly or collaterally” (internal quotation marks omitted)); see also People v. Permanian,
381 Ill. App. 3d 869, 873-76 (2008).
¶ 19 Applying the aforementioned principles to the facts of this case, for the reasons that
follow, we are compelled to conclude that the circuit court’s order was not void, so as to
permit the defendant to proceed with his section 2-1401 petition outside the two-year
statutory limitation period. The defendant here does not, nor could he, argue voidness on the
basis of the court’s lack of personal or subject matter jurisdiction. Rather, the defendant
solely contends that the trial court had no authority to render the armed robbery conviction
in conjunction with the felony murder one.
¶ 20 The defendant is correct, and the State concedes, that a person cannot be convicted and
sentenced for both felony murder and the offense underlying the felony murder charge, in this
case, armed robbery. See, e.g., Coady, 156 Ill. 2d at 537 (“[t]he defendant correctly notes that
armed robbery was the offense underlying the felony murder charge and, as an included
offense, will not support a separate conviction and sentence”); Davis, 156 Ill. 2d at 153(noting that a “conviction on [a] lesser included offense is improper”); see also People v.
Donaldson, 91 Ill. 2d 164, 170 (1982); People v. Johnson, 167 Ill. App. 3d 659, 669-70
(1988). However, this fact alone did not automatically divest the circuit court of its inherent
power to enter the convictions and sentences.
¶ 21 Our supreme court’s decision in Coady unequivocally illustrates this principle. In that
case, just as here, the defendant pleaded guilty to, inter alia, felony murder predicated on
armed robbery and armed robbery, and was sentenced to concurrent terms of 50 years’
imprisonment for murder and 30 years’ imprisonment for armed robbery. Coady, 156 Ill. 2d
at 534-35. The defendant subsequently submitted a pro se motion to withdraw his guilty plea,
which was denied by the circuit court and affirmed on appeal. Coady, 156 Ill. 2d at 535. The
defendant then filed a pro se postconviction petition pursuant to the Post-Conviction Hearing
Act (725 ILCS 5/122-1 et seq. (West 2008)) arguing, inter alia, that his guilty plea for armed
robbery was involuntarily entered since armed robbery was a lesser included offense of
felony murder and thus could not sustain a separate conviction and sentence. Coady, 156 Ill.
2d at 536. The circuit court dismissed the petition and the appellate court affirmed, refusing
to disturb the defendant’s conviction for armed robbery since its earlier disposition of the
same issue barred its relitigation under the doctrine of res judicata. Coady, 156 Ill. 2d at 536.
¶ 22 On appeal to the supreme court, the defendant argued, just as the defendant does here,
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that his conviction and sentence for armed robbery were void and therefore subject to attack
at any time, and that they should be vacated. Coady, 156 Ill. 2d at 537. Our supreme court
disagreed. It first noted that defendant was correct in arguing that “armed robbery was the
offense underlying the felony murder charge and, as an included offense, [would] not support
a separate conviction and sentence.” Coady, 156 Ill. 2d at 537. The court then went on to
state that this in itself did not divest the court of jurisdiction so as to make the judgment of
the circuit court void. Coady, 156 Ill. 2d at 537-38.
¶ 23 In coming to its decision, the court in Coady relied on its prior decision in Davis. In that
case, the defendant was found guilty of possession of cannabis with intent to deliver and of
an included offense, possession of cannabis. Coady, 156 Ill. 2d at 537 (citing Davis, 156 Ill.
2d at 151-52). A single sentence was imposed for the two convictions. Coady, 156 Ill. 2d at
537 (citing Davis, 156 Ill. 2d at 151-52). The defendant did not appeal from his original
conviction and his postconviction petition raised only a single issue unrelated to the question
of the dual convictions. Coady, 156 Ill. 2d at 537 (citing Davis, 156 Ill. 2d at 151-52).
Nevertheless after the dismissal of his postconviction petition, the defendant appealed
arguing that the conviction for the lesser included offense was void and thus could be
challenged at any time, without regard to whether the issue had been properly preserved for
review. Coady, 156 Ill. 2d at 537 (citing Davis, 156 Ill. 2d at 151-52). The appellate court
held that the defendant’s conviction for unlawful possession of cannabis was void because
it was a lesser included offense of unlawful possession of cannabis. Coady, 156 Ill. 2d at 537
(citing Davis, 156 Ill. 2d at 152-53).
¶ 24 Our supreme court, however, disagreed and held that the defendant’s conviction was
voidable, as opposed to void. As the court in Davis explained:
“Defendant’s reasoning, although not expressly articulated, is that because the
constitution prohibits multiple punishments for the same offense, the improper
conviction on the lesser offense, coupled with the conviction on the greater offense,
exceeds constitutional authority. Clearly, the infringement of certain fundamental rights,
like due process and equal protection, is constitutionally impermissible. However,
although violation of such rights may present a proper subject for an exercise of the
court’s jurisdiction, the rights do not, themselves, vest a court with subject matter
jurisdiction. [Citation.]
Our constitution confers upon the circuit courts a general grant of authority to hear
and decide all matters of controversy. Such jurisdiction is not defined by the propriety
of the court’s judgments. ‘There are many rights belonging to litigants–rights which a
court may not properly deny, and yet which if denied do not oust the jurisdiction or
render the proceedings absolutely null and void.’ [Citation.] Significantly, this court has
held that the constitutional right to not be twice put in jeopardy for the same offense is
a personal privilege which may be waived. [Citation].
In this case, jurisdiction over the defendant, as well as over the subject matter, was
proper. The court had authority to enter conviction and sentence on either of the charged
offenses [citations], and judgment on both was, merely, error. Nevertheless, the court’s
erroneous judgment was insufficient to effect divestiture of the court’s jurisdiction. The
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judgment was, therefore, voidable and is not subject to collateral attack. [Citation.]”
(Emphasis added.) Davis, 156 Ill. 2d at 157-58.
¶ 25 On the basis of its holding in Davis, in Coady, our supreme court found that although the
defendant’s conviction and sentence for armed robbery may have been erroneously entered
in light of his separate conviction and sentence for the greater offense of felony murder, “that
portion of the judgment was merely voidable, and not void.” Coady, 156 Ill. 2d at 538. The
court in Coady further concluded that as a voidable order, the conviction and sentence were
not subject to collateral attack without regard to whether the defendant had followed the
necessary procedural requirements for preserving the issue for review. Coady, 156 Ill. 2d at
538.
¶ 26 In the present case, just as in Coady and Davis, the trial court had jurisdiction over the
defendant as well as the subject matter. The court had authority to enter convictions and
sentences on either of the charged offenses, and its order entering judgment on both merely
constituted error. Coady, 156 Ill. 2d at 533; Davis, 156 Ill. 2d at 157-58. However, this
erroneous judgment did not divest the court of its jurisdiction, and therefore the judgment
was voidable and not void. See Coady, 156 Ill. 2d at 533; Davis, 156 Ill. 2d at 157-58; cf.
Permanian, 381 Ill. App. 3d at 873-76 (holding that the circuit court’s judgment convicting
the defendant of both the inchoate crime of conspiracy to commit murder and murder was
not void but merely voidable; explaining that since the trial court had jurisdiction to convict
the defendant of conspiracy and of murder, judgment on both merely constituted error, rather
than rendered the judgment itself void).
¶ 27 The defendant nevertheless argues that People v. Wade, 116 Ill. 2d 1 (1987), relied upon
by the circuit court, compels a different result. In Wade, the defendant pleaded guilty to
robbery in exchange for a sentence of probation, and the parties stipulated that the defendant
had no prior convictions. Wade, 116 Ill. 2d at 4. Nine months into the defendant’s thirty-six-
month probation sentence, the trial court learned that the defendant had been in fact
convicted of two prior offenses, which rendered him statutorily ineligible for probation.
Wade, 116 Ill. 2d at 4. Accordingly, the trial court vacated the probation order and the
defendant withdrew his plea. Wade, 116 Ill. 2d at 4. The defendant was subsequently tried,
convicted and sentenced to nine years’ imprisonment. Wade, 116 Ill. 2d at 4. On appeal, the
defendant argued that the circuit court lacked jurisdiction to vacate the judgment of probation
more than 30 days after imposing the original sentence. Wade, 116 Ill. 2d at 4-5. The
defendant further argued that his probation order was voidable and should therefore not have
been vacated by the circuit court. Wade, 116 Ill. 2d at 5. Our supreme court held that because
the trial court had given the defendant a sentence that was expressly barred by statute, it had
exceeded its inherent authority and the defendant’s sentence was void. Wade, 116 Ill. 2d at
6.
¶ 28 Wade is factually inapposite to the present case, which is analogous to Davis and Coady
and deals with the erroneous imposition of multiple convictions for the same offense, and
not the imposition of a sentence that is explicitly barred by statute. Moreover, Wade did not
draw a distinction between a voidable and void offense, while Davis, written after Wade, did.
For this reason, alone, this appellate court has already concluded once that Davis is the
“better reasoned case.” Hall, 291 Ill. App. 3d at 416. We agree with that appraisal and in
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accordance with Davis, for the reasons already discussed above, find that the trial court’s
judgment was merely voidable.
¶ 29 We similarly find the defendant’s citation to People v. Arna, 168 Ill. 2d 107 (1995), and
People v. Brown, 225 Ill. 2d 188 (2007), unavailing. Just as Wade, Arna and Brown held that
a sentence that exceeds a statutory maximum or violates the constitution is void and subject
to a challenge anytime. See Brown, 225 Ill. 2d at 203-04; Arna, 168 Ill. 2d at 113. However,
unlike the cause at bar, which is analogous to Coady and Davis, neither Arna nor Brown
dealt with the improper imposition of multiple convictions for the same offense. See Brown,
225 Ill. 2d at 203-04 (discussing the voidness of a sentence imposed pursuant to a void
sentencing statute); Arna, 168 Ill. 2d at 113 (discussing the voidness of an order imposing
concurrent sentence terms in violation of specific statutory requirements). Whereas imposing
an unavailable sentence renders a circuit court’s judgment void because the judgment
exceeds the court’s legislatively proscribed inherent powers, a court that enters multiple
convictions based on the same underlying offense does so in proper exercise of
constitutionally derived jurisdiction. See Coady, 156 Ill. 2d at 533; Davis, 156 Ill. 2d at 157-
58.
¶ 30 In a final attempt to circumvent the decision in Davis, the defendant attempts to argue
that unlike Wade, Arna and Brown, Davis dealt only with the improper imposition of
multiple convictions for the same offense and does not apply to the improper imposition of
multiple sentences. Contrary to the defendant’s contention, however, as already discussed
above, in Coady, which is identical to the cause at bar, and which the defendant neither
distinguishes nor attempts to address, our supreme court specifically applied the holding of
Davis to a situation where a trial court had not only imposed an improper multiple conviction
but also an improper multiple sentence, albeit to be served concurrently and not
consecutively, and found that such a judgment was nevertheless voidable and not void. See
Coady, 156 Ill. 2d at 534-35 (holding that defendant’s plea of guilty to felony murder
predicated on armed robbery and armed robbery, as well as his concurrent sentences of 50
years’ imprisonment for murder and 30 years for armed robbery, were not void).
¶ 31 Furthermore, even if we were to accept the defendant’s argument, we would nevertheless
find that under Arna and Brown, his sentence was not void. Both Arna and Brown explicitly
held that when the sentence is void, only that part of the sentence that exceeds what the law
permits is void and the remainder remains valid. See Brown, 225 Ill. 2d at 205 (“while a
sentence, or portion thereof, not authorized by statute is void [citation], it is void only to the
extent that it exceeds what the law permits. The legally authorized portion of the sentence
remains valid.”). In the present case, although the defendant was erroneously convicted for
both felony murder and the underlying predicate armed robbery offense, his total sentence
of 45 years fell squarely within the permissible statutory range for first degree murder,
between 20 to 60 years (730 ILCS 5/5-8-1(a)(1)(a) (West 2008) (now 730 ILCS 5/5-4.5-20(a)
(West 2010))).
¶ 32 Accordingly, for the reasons articulated above, and compelled by our supreme court’s
decisions in Davis and Coady, we conclude that the circuit court’s order improperly
convicting the defendant of armed robbery in addition to the greater offense of felony murder
predicated upon that armed robbery was voidable and not void. Consequently, since the
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defendant’s section 2-1401 petition was filed outside of the two-year statutory period (735
ILCS 5/2-1401(c) (West 2008)), we hold that the circuit court erred in denying the State’s
motion to dismiss that petition.
¶ 33 III. CONCLUSION
¶ 34 For the aforementioned reasons, we reverse the judgment of the circuit court.
¶ 35 Reversed.
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