ok no statute no fence no offense no jurisdiction why are we here i robbed an hour i am not the attorney who brief this case or handled it before at the trial court level it's as many of you know or may know then the day passed away and i'm handling this appeal for him then today trained me to be a criminal defense attorney for eleven years in those eleven years he taught me that the state has the law usually they have the facts and all they need to do is keep it black and white so that you don't lose a jury he also taught me that a good defense attorney tries to live in the gray area and how do we get to the grey area he always said that the way to get you've got one exactly what i was thinking is when i'm reviewing this record not knowing that i was going to be handling this appeal oh no this is a day and no day trial a day and a day special and i am going to be wost well i did find that we had a circus atmosphere i was a little disappointed in dan because it was not him that tried to create it danno day at every turn in the trial court in this sought to make it black and white what is the defense what is the defense when is the jurisdiction what is the defense did every time there's no waiver of any argument this this was well briefed at every information the first one when the state charged a violation of section five of the timber buyers licensing act which i will to shorten  it was again when the state charges section ten of the tb l a the state and i still standing right here before you i asked the question why are we here i still do not know what the offense is the state said there was section five and two administrative regulation section fifteen thirty five point one b and section fifteen thirty five point sixty all after this court state proceedings and skylar county attempted and did for a period of ninety days suspend mr edwards has since acquired timber buyers license letter they say the violation was when they tried to suspend it they said it was a violation of section three of the t v l a not five not ten not section fifteen thirty five point one b not section fifteen thirty five point sixty and now today and for the first time in the respondents filed in their response brief the attorney general's office is going to get up here and say section ten was a mistake that it was really section eleven day and as i will show section eleven are twenty seven sixteen a watch is a crime question mark two twenty five backslash seven thirty five dash five question mark question mark question mark and the clerk later said offense not in table i see short for administrative office of the only court's informations as far as i've seen and all of the research that we've been able to find always cite the statute identifying an offense no offense or no statute no offense no offense no jurisdiction i would love to see that an opinion counsel you know ritter prohibition is an extraordinary remedy and there would potentially give us the opportunity to stay the sentence and conviction but it does not state the administrative proceedings which the d n r have already instituted against mr edwards as since acquired timber buyers license now we were able to go in the test will county in the court can take judicial notice of that in an m r case and have the circuit court in tadmor county granted i was straining order against the d n r stopping them from doing just asking we're asking in this case before this crowd to have an order entered granting the probation and directing the the respondents in schuyler county from engaging preventing them from engaging in any further action in this case because they would be acting beyond the scope of their jurisdiction and any at any actions have that have already occurred and that's because it's an administrative proceeding no in skyla county it was a criminal proceeding suspend mr minute mr edwards as timber buyers license based on an alleged violation of section three of the timber buyers licensing act which isn't even what's been argued here it's not been what was argued in county so just in a separate matter and we're saying is that even if you were to say the proceedings in a way that would marry course of a criminal appeal that wouldn't stop the idea an author from doing what it is they're trying to do so we're saying that that all workers entered in schuyler county by the respondents were beyond the scope of their jurisdiction except for if there was an order entered dismissing the case for lack of jurisdiction and then appeal the only problem would be that we still have the issue of what the administrative agency is doing contemporaneously so because of the license and because of the idea and ours ability to continue administrative proceeding simultaneously the timing component if mr edwards were to lose his license and the normal appellate process takes i think that the idea is typically that it takes longer than the supreme court does to grant an order for a writ or  order of prohibition this case got delayed a little bit because of mr o days illness but ordinarily having an order of prohibition entered by the supreme court would be quicker than the ordinary appellate process and one and the audience understand that this quarter but it doesn't section eleven to make this a little confusing if the if the state could have brought a village church and the section i know you're saying they didn't but if they could have brought a village church is pro british an appropriate roman you know i believe that would still be an appropriate remedy or honor because even i live in a doesn't provide a valid charge eleven eleven day is a penalty provision it doesn't proscribed any specific conduct and then you've got to get into the administrative regulations are six hundred thirty five point one now fifteen thirty five point one in the only register which we cited in our briefs sets forth that the purpose of fifteen thirty five point one eight m b is to outline and further explain the application process for a license under the t licensure under the t v l a so based on not only the fact that it looks to me or section three of the t b a which only on its face applies to licensees and license applicants mr edwards at the time was neither he was an further explain what is required to apply for a license and the in any event so it's pretty clear that it was only right meant to regulate and explain the application process for licensees and applicants for a license to the the ambiguity in favor of mr edwards not in favor of the state or the department of natural resources with respect to fifteen thirty five point six which is the other administrative regulation that would be regulation in addition to live in a well let me step back sorry fifteen thirty five point one b section three of the t v l a section through the t v l a has its own sentencing provision or penalty provision for a violation of section three below it so it is not like a live and a five is part of a lot and a so eleven wouldn't even be the right statutory provision and in any event it's a penalty provision it doesn't state an offense under the well hans lumber case which we also cite in our brief it says that you need two components for an offense you need the prohibited conduct and you need a penalty provision in the absence of prohibited conduct with only a penalty provision which is alive and in any  it wouldn't state an offense under the code of criminal procedure section one eleven dash three with respect to fifteen thirty five point sixty that is just a penalty provision there are a few different problems with that section article six section nine of the eleven eight it fails eleven because one i love an a is not a state it's not an offense if it only provides a penalty and the corollary regulations that were cited in the in the charging instrument are not penal in nature so for those reasons i think i've got a little out of order but in section ten which is the other statute that's charged is a it's a there's no way for canon edwards not being the department of natural resources to break that rule to violate that rule so you have section ten yes section fifteen thirty five point one b  section fifteen thirty five point sixty three none of them state an offense so we're still in no offense no statute no offense no offense no jurisdiction and i think going into offense a little bit it is important section one three of the criminal code sets forth with an offense is an offense must be described in the criminal code or in another statute of the state section one five of the criminal code says that state criminal jurisdiction involves an offense to twelve of the criminal code states that an offense is a violation of a penal statute two twenty two of the criminal requirements in the charging instrument the requirements include among other things the offense and now the attorney general's office is going to get up here and they're going to cite cases like gilmore because you and i wind of cases that say that sufficient notice is enough if the defendant was on notice as to what they're being charged with strict compliance with one eleven three is not necessary one of them three being what i just explained requires an offense you stated in the charging instrument that is not accurate in this case in this case there were many motions attacking the information's there was a demand for a bill of particulars that's not common and you know a lot of criminal cases that i've dealt with mostly because it's pretty clear what's going on here we still don't know what's going on yet i was taking a position that that the respon were the judges in this case having taken the judges or taking a position the state didn't take that but the state went to trial on section ten so we've got a late hour switch but so here we  i'm at a loss in terms of the confusion so the standard is different though and here i am you got to back the standard is different so that's the standard the sufficient notice standard if there are no pretrial filings but when you have more to fill motions and a demand for a bill of particulars filed pretrial post trial in a different standard applies that would be the standard thing bold and straight and it's even alluded to in gilmore which the attorney general's office does side in their brief the standard then  in their charging instrument they did not we have section ten rules and they're going statute section fifteen thirty five point one b and explanation of the application process which governs licensees and licensure applicants and section fifteen thirty five point sixty which is a penalty provision that attempts to be jurisdiction i circuit court to adjudicate findings of guilt which you can't have because an administrative regulation offense a statutory penal statute doesn't exist for these reasons we would ask that in order for prohibition be entered directing the courts in schuyler county to enter  dismissal order and stop doing anything further because it was it is beyond the scope of their jurisdiction the circuit court in schuyler county lacks jurisdiction they did that to me now thank you very much and have a good day thank you petitioners criminal case but the normal appellate process is perfectly capable of providing any relief to which petitioner might be entitled on his claim that the charging instrument was fatally defective or that the offense is unconstitutional because  ruling do not rest in roots of prohibition since no question of yours there can is if this point in both that's exactly right so there is a contention obviously between you and opposing counsel as to whether or not points  jurisdiction questions of yours the action heard that's exactly right and i'm i'm prepared to explain why we disagree but petitioner argues that the circuit court lacks subject matter jurisdiction because the charging instrument alleged that he committed it to class counsel i believe stated no offense no jurisdiction that's not quite right it's no just a civil matter no jurisdiction and our constitution provides that the circuit court has subject  matters and it just it just will matter is merely a matter of controversy that sufficiently definite and sufficiently concrete it's not hypothetical it has a bearing on the legal rights the defendant and it's not within the exclusive jurisdiction of this court or a review of an administrative bodies decision or it is loose or put it was the only question is whether the asserted claim legally sufficient or not was filed in the proper tribunal if it was  class of cases that the circuit court has inherent authority to adjudicate trying class a misdemeanor is not the review of an administrative bodies decision it's not within this court's exclusive original jurisdiction  because the information allegedly just will matter whether that decisional matter was legally sufficient to support conviction or not subject matter jurisdiction covered it is for exactly that same reason that the separation of powers argument is irrelevant to subject marriage or restriction on the legal sufficiency just doesn't have any bearing on jurisdiction whether the offense that's charged is in violation of separation of powers short hearing on that motion for the circuit court has subject matter jurisdiction to hear the case turning to the question of the adequacy of the remedy in the normal appellate process even if petitioner could establish a lack of subject matter jurisdiction would still fail because the normal appellate process can provide full relief and vacate his conviction his argument that it's not adequate that pressing his claim that the indictment was or the information rather was fatally active and the offense was unconstitutional that pressing those through the normal process can provide him full relief because in the interim during the pendency of that appeal will have to endure the direct consequences of conviction he may have his license revoked it may affect his words he may be placed on probation those consequences don't render the normal appellate process inadequate if that were the case every collateral of conviction right there's setting aside actual imprisonment for people are committed to following felonies they may lose their driver's license a business license that may be subject to that registration obligations of a sex offender registration  defective and vacate the conviction providing full relief petitioners country position would effectively eliminate appellate review for any claim involving the charging instrument and i understand that everything i you know i haven't given it much thought because this is just doesn't present that question that one of the arguments that came up in the briefing was well even if there's an adequate remedy if mr de immiseration of justice requires  address this because we need to know whether a purely regulatory violation that doesn't have a criminalizing statute attached to it and support a criminal conviction but that's just not the case or section eleven a plainly states that any person in violation of any provision of this act or administrative rules they were under shall be guilty of a class a misdemeanor it could not be plainer that a violation of the ministry of rule is a class a misdemeanor under section  this is typically how the general assembly criminalizes regulatory violations is by enacting a statute saying that a regulatory violation is a crime and surely there is no confusion below as to whether there was a criminal statute and if in that applied in exhibit k to petitioners motion for leave to file a petition for an order prohibition that's the order of the circuit court entered denying petitioners motion dismiss the amended information and paragraph d the court specifically found that the applicable statutes provide that in violation of the ministry of rules and regulations or crimes that's her got the three and then later down and d ten the court found that quote the statute provides that a violation of the administrative rules is a class a misdemeanor so it doesn't appear that there's any confusion below as to what the offense was it was a class a misdemeanor based on a violation of the ministry of rules  right it is so the answer is no if the state had come in and said to shark made a class a misdemeanor for doing it for it didn't say anything just that he committed class a misdemeanor for acting as an authorized buyer for more than one licensed timber buyer that would allege it just a civil matter it may not be sufficient it made it may be inadequate to put dinner on notice of the offense it's certainly not in strict compliance with such anything that and no i'm not saying that i'm saying in the hypothetical if if we if we could even take a step back and say let's say that information alleged only that petitioner committed a class a misdemeanor with a knife we have no idea what that offenses we know that they're alleging that he did something with a knife right and we know that there are lodging that that he is subject to criminal sanctions a class a misdemeanor based on that  the motion to dismiss will be successful but the motion to dismiss will be successful not because the circuit court lacked subject matter jurisdiction but because the indictment was fatally defective the question of whether an indictment is sufficient whether adequately pleads the offense is just a separate inquiry from the question of whether there was a just a matter was there a concrete allegation that affected the the legal purported to affect the legal rights of the defendant if you like th defendant committed a class a misdemeanor or a class one felony or class two felony any sort of crime you've alleged just will matter you may not have alleged a matter that is sufficient under due process but you've alleged the matter sufficiently to subject marriage or a section under the constitution  so because there was subject marriage or stick which is a very low bar it's just have you allege that something happened and the court in the term whether or not that thing happened and whether they're legal consequences that flow from it and because even if there wasn't the cases that petitioner cites talking about the standard of review of a and it charging instrument were not question cases involving questions of jurisdiction there are questions about the sufficiency of the indictment  if that's the case and further the mere fact of conviction and the direct incredible consequences of that fact renders the normal appellate process inadequate then every criminal defendant who has a complaint about his charging i to end up in this court filing an action seeking prohibition the normal process for a criminal case will no longer be a trial direct appeal p l a it will be defective and at the time that conviction has to be overturned because of that and there's no reason for this court to involve itself in every case post verdict pre sentencing were a defendant believes that his charging instrument was defective so if there are no further questions for those reasons we ask that the court deny the petition for an order prohibition thank you  a question was just asked what offense was what i think i've explained what an offense is several times but the answer that the attorney general's office gave was fifteen thirty five point one b that's not an offense it's not an offense in the criminal code it's not an offense under the code of criminal procedure it's not an offen this is not a case where if you rule in favor of the petitioner you're going to open up the floodgates or writs of program look there's a prohibition order seeking prohibition because the state does get it right they cite an offense a statutory provision before trial or if they have to clean it up still before trial here we are changing it in the respondents brief before the illinois supreme court this is not what section eleven a is not anything that that the petitioner that defendant of the trial court level was ever arraigned on ever asked to plead instructions the jury instructions for eleven a were never given to i mean this is something that came up after the fact jury instructions for a live in a there's there's this is kind of i think to quote on on the petitioner here because this is something that's coming up after trial and you know again i don't want to be labor the point this this is a very very different situation than an ordinary defendant in the ordinary pellet process now the court actually can and we cited a few cases we cited the zabel case that this is important to the administration of justice because this court can set forth the rule that yes for offense you need to have a statute cited in the charging instrument that is in lockstep with all the case law that there is out there and if you have a  pretrial attack on the sufficiency of the indictment and indeed the court's jurisdiction strict compliance one eleven three is necessary we also cited the more case in our brief for this the proposition that even in even if the ordinary appellate process is adequate the court can still in its discretion enter such an order this is an extraordinary case i mean the record shows it's an extraordinary case you're not going to see a bunch of cases coming up here saying no statute was plugged in the information and this is really anomalous i mean i'm happy because they got me before all of you but i wish that they hadn't happened for my clients sake for those reasons i would as the request of relief began to thank you very much thank you here's number one two three