6 replies to this topic

[skinnyb82]

Another section of AUUW declared unconstitutional by the First District. The State conceded that the subsection is unconstitutional, agreed the panel should vacate the conviction. Then it tried some underhanded crap by filing a motion to reinstate the two counts of AUUW (felon) and 5 counts of garden variety AUUW, which were dismissed nolle prosequi. The panel held that he cannot be prosecuted for the same act as he served six years in prison prior to this case being decided.

"Although Aguilar finds only subsection (3)(A) to be facially unconstitutional, the parties are in agreement that the underlying rationale extends to defendant's conviction under l subsection (3)(. Subsection (3)(A) prohibits the possession of an uncased firearm that is "loaded and immediately accessible," whereas subsection (3)( prohibits the possession of an uncased firearm that is "unloaded and the ammunition for the weapon [is] immediately accessible." 720 ILCS 5/24-1.6(a)(1)/(3)(A)( (West 2004). A conclusion that subsection (3)( is valid would illogically prohibit the possession of an unloaded gun in the same situation where, under Aguilar, the possession of a loaded gun is constitutionally protected. We believe the second amendment's protection of an individual's right to carry a loaded firearm naturally extends to protect an individual's right to carry an unloaded firearm with immediately accessible ammunition. Accordingly, we find subsection (3)( constitutionally invalid based on Aguilar."

Addressing the state's argument that it should be allowed to reinstate the charges dismissed nolle prosequi, court concluded that jeopardy has attached and he cannot be tried on the remaining seven counts. The State hasn't even made the effort to reinstate so jeopardy attaches.

"The record does not show that the State moved the trial court to vacate the nolle prosequi order, nor has it filed a new charging instrument to initiate a separate proceeding against defendant. The present case is solely related to defendant's section 2-1401 petition seeking relief from a void judgment. Therefore, contrary to the State's assertion, this appeal does not signify that "prosecution is still pending." It is well established that a section 2-1401 proceeding is "not a continuation of the case that resulted in the judgment that it challenges" but is an altogether new proceeding. People v. Kane, 2013 IL App (2d) 110594, ¶ 13."

Here's the opinion.

http://cloud.tapatal...f8e/1142130.pdf


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[Molly B.]

Thank you!

[transplant]

Is it unconstitutional with, or without, (i.e. before, or after) the FCCA?

[tkroenlein]

Is it unconstitutional with, or without, (i.e. before, or after) the FCCA?

I wanna know when I can take all these rulings before a judge and say, "Hey buddy, why I gotsa keep paying not to get arrested for all this stuff even after it's been declared unconstitutional seven ways from Sunday?"

[skinnyb82]

The Aguilar court declared the specific subsections of the AUUW/UUW void ab initio, which essentially means that the subsections are facially unconstitutional, never were constitutional so the subsections must be wiped from the books as though they never existed. "Void" from the beginning. People convicted under statutes and portions of statutes held void ab initio are entitled to vacate their convictions. Such is the case here where the First District held another portion of the AUUW unconstitutional, void ab initio. Sent from my VS987 using Tapatalk

[lockman]

Is it unconstitutional with, or without, (i.e. before, or after) the FCCA?

 

The FCCA should be irrelevant, without an FCCL the aforementioned AGGUUW would still be unconstitutional as applied to possession/carry of unconcealed firearms. The FCCA was passed in a rush to get the 7th circuit court of appeals off of the IL GA's back. The extent of open carry/concealed carry right vs privilege is still unanswered in IL by a specific court determination. At present all we know for sure is a total denial in all forms of carry does not fly and as such the UUW's that result in such total prohibition have or will soon fall.

[Davey]

Can someone translate this recent ruling into English?