My client was charged with Aggravated Unlawful Use of a Weapon under 720 ILCS 5/24-1.6(a)(1) back in 2004 and was found guilty at trial in 2006. Subsequently, in 2012, the Illinois Supreme Court, in People of the State of Illinois v. Aguilar, held that the Aggravated Unlawful Use of Weapons statute is unconstitutional.
In November of last year I filed a Motion to Vacate his 2006 conviction based on the Supreme Court’s decision arguing that since the statute has been declared unconstitutional it is void ab initio, meaning it is void at its inception and any conviction, regardless of when it was entered, should be vacated.
The State’s Attorney’s Office filed their response arguing that (a) the court has no jurisdiction to hear the matter as the motion was filed more than 30 days since the Court’s judgment and (b) that this is the incorrect venue for such a proceeding. Argument was heard today and based on the correct motion having been filed by my office and the fact that the statute was declared unconstitutional, not only does the court have jurisdiction and venue is in fact proper, that my client’s conviction must be vacated.
Since my client has no other convictions on his record, his criminal background can now be expunged and is no longer a convicted felon!
But this is fast becoming a contested issue. The general holding of the Aguilar decision is that the statute is unconstitutional. Period. The State’s Attorney’s office is now attempting to argue that the decision does NOT make the statute unconstitutional retroactively. This makes no legal sense though. The fact of the matter is, a law is either unconstitutional or it’s not. It does not become unconstitutional at some point. We have another motion pending in front of a different judge that is coming up in a few weeks. I am expecting the State to make the argument regarding retroactivity, but am hoping it doesn’t come to that since I believe the judge may be leaning towards the State’s argument.
I would continue to advise those with prior convictions for Aggravated Unlawful Use of Weapons charges, assuming they had a valid FOID card at the time of the arrest, to contact us to file a Motion to Vacate the Conviction. It certainly cannot hurt to try and if it is granted, it could clear your record and allow further employment advancement among other benefits.
If you have been charged with Aggravated Unlawful of Weapon in Chicago or elsewhere in Illinois, please contact us immediately at (312) 560-7100 or email dfreidberg@freidberglaw.com for a free consultation. We are available 24 hours a day, 7 days a week for your convenience.