Illinois Official Reports 

Appellate Court

People v. Shinaul, 2015 IL App (1st) 140477

Appellate Court 

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. 

CORNELIUS SHINAUL, Defendant-Appellee.

District & No. First District, First Division

Docket No. 1-14-0477

Opinion filed

Rehearing denied

Supplemental opinion

Filed

October 5, 2015

October 23, 2015

October 26, 2015

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 09-CR-6762; the 

Hon. Thomas M. Davy, Judge, presiding.

Judgment Appeal dismissed.

Counsel on

Appeal

Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, 

John E. Nowak, and Caitlin A. Corcoran, Assistant State’s Attorneys, 

of counsel), for the People.

Michael J. Pelletier, Alan D. Goldberg, and S. Amanda Ingram, all of 

State Appellate Defender’s Office, of Chicago, for appellee.

Panel PRESIDING JUSTICE LIU delivered the judgment of the court, with 

opinion.

Justice Neville concurred in the judgment and opinion.

Justice Pierce specially concurred, with opinion.
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 OPINION 

¶ 1 In 2009, defendant, Cornelius Shinaul, was charged with eight counts of aggravated 

unlawful use of a weapon (AUUW) and one count of unlawful possession of a firearm. He 

subsequently pleaded guilty to the AUUW offense under count I of the information, pursuant 

to section 24-1.6(a)(1), (a)(3)(A) of the Criminal Code of 1961 (Criminal Code) (720 ILCS 

5/24-1.6(a)(1), (a)(3)(A) (West 2008)), and the State nol-prossed the remaining charges 

under counts II through IX. The trial court sentenced defendant to 24 months’ probation for 

committing a Class 4 felony under the AUUW statute. In 2013, defendant brought a petition 

for relief under section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 

(West 2012)), seeking to vacate the conviction on the basis that it was void under People v. 

Aguilar, 2013 IL 112116. In response, the State did not challenge the petition, but, instead, 

moved to reinstate counts II, IV, VI, and VIII of the 2009 information. Following a hearing, 

the trial court entered an order vacating defendant’s conviction and allowing him to withdraw 

his plea, but denying the State’s motion for reinstatement. The State appealed. We dismiss 

the appeal for lack of jurisdiction. 

¶ 2 BACKGROUND 

¶ 3 Defendant was 16 years old in February 2009, when he was arrested for various firearm 

possession offenses. On April 8, 2009, the State brought nine counts against him by 

information. In count I, the State alleged that defendant committed an AUUW offense by 

knowingly carrying, on or about his person, a firearm that was uncased, loaded, and 

immediately accessible, in violation of section 24-1.6(a)(1), (a)(3)(A) of the Criminal Code. 

720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2008). Counts II through VIII involved other 

offenses under other subsections of the AUUW statute, e.g., knowingly carrying a firearm 

without a currently valid firearm owner’s identification (FOID) card (720 ILCS 

5/24-1.6(a)(1), (a)(3)(C) (West 2008)). Count IX was based on the unlawful possession, by a 

person under the age of 18 years, of a firearm and firearm ammunition of a size which may 

be concealed upon the person (720 ILCS 5/24-3.1(a)(1) (West 2008)). 

¶ 4 On June 2, 2009, as part of a negotiated plea agreement between defendant and the State 

following a Rule 402 conference (Ill. S. Ct. R. 402 (eff. July 1, 1997)), defendant pleaded 

guilty to count I of the information and the State agreed to enter a nolle prosequi on the 

remaining charges. Defendant was convicted of the AUUW offense under count I and was 

sentenced to 24 months’ probation based on a Class 4 offense (720 ILCS 5/24-1.6(a)(1), 

(a)(3)(A) (West 2008)). Defendant served and completed the full term of his sentence. 

¶ 5 In September 2013, our supreme court ruled that “the Class 4 form of section 

24-1.6(a)(1), (a)(3)(A), (d) violates the right to keep and bear arms, as guaranteed by the 

second amendment to the United States Constitution.” Aguilar, 2013 IL 112116, ¶ 22; U.S. 

Const., amend. II. The particular section of the AUUW statute that was found 

unconstitutional by the court in Aguilar is the same statutory provision under which 

defendant was convicted and sentenced. 
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¶ 6 On October 28, 2013, defendant filed a petition to vacate his conviction pursuant to 

section 2-1401 of the Code.1 In response, the State acknowledged that the conviction should 

be vacated because “the Illinois Supreme Court held [in Aguilar] that section 24-1.6(a)(1), 

(a)(3)(A) was facially unconstitutional”; however, it requested reinstatement of four of the 

charges (under counts II, IV, VI, and VIII) that were previously nol-prossed in the original 

2009 criminal proceeding. These four charges involve alleged violations under the AUUW 

statute for possession of a firearm: (1) without a currently valid FOID card (720 ILCS 

5/24-1.6(a)(1), (a)(3)(C) (West 2008)); (2) while under the age of 21 (720 ILCS 

5/24-1.6(a)(1), (a)(3)(I) (West 2008)); (3) upon a public street without a valid FOID card 

(720 ILCS 5/24-1.6(a)(2), (a)(3)(C) (West 2008)); and (4) upon a public street while under 

21 years of age (720 ILCS 5/24-1.6(a)(2), (a)(3)(I) (West 2008)). 

¶ 7 On December 16, 2013, the trial court granted defendant’s section 2-1401 petition and 

ordered that his conviction be vacated, and allowed defendant to withdraw his guilty plea. 

The court also denied the State’s motion for reinstatement of the charges. During the hearing, 

the trial court explained that “no matter how many different theories the State may have had 

as far as aggravated unlawful use of weapons, we are talking about one singular gun,” and 

because judgment had already been entered as to “the one gun involved in [defendant’s] 

case,” reinstatement of the charges that were nol-prossed by the State in 2009 would violate 

the one-act, one-crime rule. The State filed a motion to reconsider. Citing People v. Hughes, 

2012 IL 112817, and People v. McCutcheon, 68 Ill. 2d 101 (1977), the State argued that the 

previously nol-prossed charges against defendant should be reinstated because: (1) the 

charges were dismissed before jeopardy attached; and (2) there was no constitutional or 

statutory limitations precluding the prosecution of defendant on those charges. The court 

denied the State’s motion to reconsider on January 17, 2014. This appeal followed.

¶ 8 ANALYSIS 

¶ 9 Before we can address the State’s arguments, we must determine whether we have 

jurisdiction to review this appeal. The State asserts that our jurisdiction is conferred under 

Illinois Supreme Court Rule 604(a)(1) (eff. Feb. 6, 2013). Defendant argues that jurisdiction 

does not exist because the trial court’s order denying the motion to reinstate charges was not 

a ruling that had the substantive effect of a dismissal of the charges. Absent statutory 

exceptions, appellate courts lack jurisdiction to review orders, judgments and decrees that are 

not final. People v. Schram, 283 Ill. App. 3d 1056, 1060 (1996). 

¶ 10 Rule 604(a), which sets forth the only grounds on which appeals may be brought by the 

State, provides as follows: 

“In criminal cases the State may appeal only from an order or judgment the 

substantive effect of which results in dismissing a charge for any of the grounds 

enumerated in section 114-1 of the Code of Criminal Procedure of 1963; arresting 

judgment because of a defective indictment, information or complaint; quashing an 

arrest or search warrant; or suppressing evidence.” Ill. S. Ct. R. 604(a)(1) (eff. Feb. 6, 

2013).

 

1Defendant’s request, styled as a “Motion to Vacate Conviction and Withdraw Guilty Plea,” seeks 

relief from a void conviction under section 2-1401 of the Code, and we will treat it as a petition for 

relief from judgment. 
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Defendant first argues that the trial court’s denial of the State’s motion to reinstate the 

charges previously brought in the 2009 information is not a valid basis for appeal under Rule 

604(a)(1) because the denial does not result in a dismissal of the charges. Second, he argues 

that section 114-1 of the Code of Criminal Procedure of 1963 (725 ILCS 5/114-1 (West 

2012)) does not apply because the statute requires that the dismissal result from a defendant’s

motion to dismiss. Finally, defendant also argues that dismissal of this appeal is required 

because “there is no case pending from which the State can appeal” because there were no 

active criminal charges remaining after the other counts were nol-prossed. 

¶ 11 In response, the State argues that the trial court erred in denying reinstatement of the 

charges because no jeopardy attached to the previously nol-prossed charges. Quoting People 

v. Norris, 214 Ill. 2d 92, 104 (2005), the State asserts that “when a nolle prosequi is entered 

before jeopardy attaches, the State is entitled to refile the charges against the defendant.” The 

State also relies on People v. McCutcheon, 68 Ill. 2d 101 (1977), for its contention that it is 

entitled to reinstate the nol-prossed counts when “there [was] no finding on the nolle’d 

counts.”

¶ 12 Pursuant to Rule 604(a)(1), our jurisdictional authority exists in an appeal brought by the 

State only if the order or judgment at issue has the “substantive effect” of dismissing a charge 

on one of the “grounds enumerated in section 114-1 of the Code of Criminal Procedure.” Ill. 

S. Ct. R. 604(a)(1) (eff. Feb. 6, 2013); see also 725 ILCS 5/114-1 (West 2012). Section 114-1 

sets forth specific grounds for dismissal of a charge, none of which are present in the case 

before us. Perhaps conceding this point, the State nonetheless contends that our supreme 

court has held that Rule 604(a)(1) “was not intended to reduce the State’s right of appeal to 

only those grounds enumerated in section 114-1.” People v. Boyt, 109 Ill. 2d 403, 411 (1985) 

(citing People v. Lawson, 67 Ill. 2d 449, 455 (1977)). “Rather, the State has the right to 

appeal from ‘any judgment the substantive effect of which resulted in the dismissal of an 

indictment, information or complaint.’ ” Boyt, 109 Ill. 2d at 411 (quoting People v. Love, 39 

Ill. 2d 436, 439 (1968)). 

¶ 13 Even if we construe Rule 604(a)(1) broadly, as Boyt instructs, so as to include orders that 

result in the dismissal of a charge for any reason, we cannot reasonably interpret the trial 

court’s denial of the State’s motion for reinstatement of the charges as a disposition that 

bears the substantive effect of a “dismissal of an indictment, information or complaint.” 

Here, the trial court denied the State’s request to reinstate charges that were previously 

dismissed by a nolle prosequi. The State’s comparison of this case to McCutcheon is 

unavailing. Unlike the situation in McCutcheon, where the reinstatement of nolle’d charges 

was permitted contemporaneous to a pending criminal proceeding on remand to the trial 

court, there was no pending proceeding here. The criminal prosecution against defendant 

based on the 2009 information ended when defendant was convicted on a single count in 

exchange for the State’s entry of a nolle prosequi on the remaining charges and no appeal 

was taken by defendant. In contrast to the procedural posture of McCutcheon, there was no 

pending criminal proceeding before the trial court in this case; the sole matter before the 

court was defendant’s section 2-1401 petition for relief from a void judgment. The denial of 

the reinstatement cannot be recast as a “dismissal of an indictment, information or 

complaint” because, simply put, there was no indictment, information or complaint pending 

before the court. See People v. Aldama, 366 Ill. App. 3d 724, 725 (2006) (dismissing appeal 

for lack of jurisdiction on the basis that Rule 604(a)(1), which is “the only source of any right 
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of the State to appeal in a criminal case, does not provide for an appeal when the court allows 

the defendant to withdraw a guilty plea”). As our supreme court has explained:

“Once a charge is nol-prossed, the proceedings are terminated with respect to the 

particular charge, and the defendant is free to go ‘ “without entering into a 

recognizance to appear at any other time.” ’ [Citation.] A nolle prosequi is not an 

acquittal of the underlying conduct that served as the basis for the original charge but, 

rather, it leaves the matter in the same condition as before the prosecution 

commenced. [Citation.]” (Emphases added.) People v. Hughes, 2012 IL 112817, ¶ 23. 

¶ 14 We find that the trial court entered no order or judgment on either December 16, 2013 or 

January 17, 2014 that had the substantive effect of dismissing any charges against defendant. 

Therefore, the State is not entitled to an appeal pursuant to Rule 604(a)(1). 

¶ 15 Defendant has also presented an argument that reinstatement should not be permitted 

because (1) the statute of limitations has expired and (2) the State’s motivation for reinstating 

the charges is grounded in vindictiveness and bad faith. The State has responded to each of 

these arguments. Because we lack jurisdiction to review this appeal, we do not reach these 

issues. In addition, we make no finding in this decision as to whether the State may 

commence a new proceeding or bring the subject charges in a new indictment or information 

“in the absence of any applicable constitutional or statutory limitations which a defendant 

may raise.” Hughes, 2012 IL 112817, ¶ 25. 

¶ 16 Appeal dismissed. 

¶ 17 JUSTICE PIERCE, specially concurring. 

¶ 18 I write separately to emphasize that because defendant filed a section 2-1401 (735 ILCS 

5/2-1401 (West 2012)) petition to vacate his conviction, the trial court had jurisdiction to 

consider only whether the judgment of conviction was valid. The filing of the section 2-1401 

petition was not a continuation of the original proceeding initiated by the State at the time of 

filing the nine-count criminal information in 2009. Rather, this criminal proceeding 

terminated 30 days after the acceptance of defendant’s guilty plea on June 2, 2009, pursuant 

to Illinois Supreme Court Rule 605(b) (eff. Oct. 1, 2001) and Rule 606(b) (eff. Mar. 20, 

2009). To avoid any confusion or misunderstanding, I emphasize that the portion of the trial 

court’s order of December 16, 2013 stating “and [d]efendant’s guilty plea to count one is 

withdrawn” (see supra ¶ 7) is surplusage and of no force or effect, because under the clear 

terms of Illinois Supreme Court Rule 605(b) (eff. Oct. 1, 2001) (a written motion to 

reconsider or vacate a guilty plea must be filed within 30 days from date of sentence), the 

trial court had no jurisdiction to allow the defendant to withdraw his guilty plea. In all other 

respects, the order vacating defendant’s conviction in light of People v. Aguilar, 2013 IL 

112116, as the State concedes, was proper. 

¶ 19 SUPPLEMENTAL OPINION UPON DENIAL OF REHEARING 

¶ 20 After this court issued its opinion in this case, the State filed a petition for rehearing, 

arguing that, even if this court does not have jurisdiction under Rule 604(a), it has 

jurisdiction pursuant to Illinois Supreme Court Rule 304(b)(3) (eff. Feb. 26, 2010). Under 

Rule 304(b)(3), an appeal may be taken from “[a] judgment or order granting or denying any 
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of the relief prayed in a petition under section 2-1401 of the Code of Civil Procedure.” Ill. S. 

Ct. R. 304(b)(3) (eff. Feb. 26, 2010). The State is mistaken in asserting jurisdiction under this 

rule. Here, the State is not appealing an order granting or denying a section 2-1401 petition; 

rather, it is appealing an order denying its motion to reinstate charges. The mere fact that two 

separate orders–one appealable and one nonappealable–are contained in the same document 

does not automatically render each order independently appealable. See Coryell v. Village of 

La Grange, 245 Ill. App. 3d 1, 5 (1993) (noting that “[a]ppealability of an order is 

determined by its substance rather than its form”). The State’s argument is simply an attempt 

to shoehorn an improper appeal into one that would otherwise be appropriate. We therefore 

deny the State’s petition for rehearing.