also dissenting:
In addition to the views expressed by Justice Clark in his dissenting opinion, which I join, I refrain from joining the majority because this post-conviction hearing was heard on direct appeal from the circuit court in violation of Rule 651 (87 Ill. 2d R. 651(a)) and because the Illinois death penalty statute (Ill. Rev. Stat 1983, ch. 38, par. 9 — 1 et seq.) is unconstitutional.
Rule 651 (87 Ill. 2d R. 651(a)) directs that appeals from “a final judgment of the circuit court” move to the appellate court. The majority substitutes for this unambiguous command the requirements found in Rule 603 which deal with appeals from the imposition of the death penalty. (87 Ill. 2d R. 603.) Rule 603, though, which is constitutionally mandated (Ill. Const. 1970, art. VI, sec. 4), applies only to appeals from decisions which initially impose the death sentence by requiring that the imposition of a death sentence must be directly appealed to this court. A post-conviction hearing, on the other hand, only reviews a final judgment which may or may not have imposed the death sentence; the post-conviction hearing does not, of itself, impose a death sentence. The majority’s reliance on Rule 603 is misplaced; Rule 651 applies to appeals from judgments denying post-conviction relief. I would require appeals from post-conviction hearings to be heard by the appellate court before any appeal could be heard by this court. The ad hoc application of Rule 651 in which this court has engaged by exempting appeals from post-conviction judgments in cases where a death sentence was previously imposed constitutes a violation of the equal protection clauses of the United States and Illinois constitutions (U.S. Const., amends. V, XIV; El. Const. 1970, art. I, sec. 2) by treating defendants in such cases differently than all other defendants without any constitutional sanction for the difference in treatment.
A fear is expressed in the majority opinion that uniform results in death cases would not result without direct appeal to this court (105 Ill. 2d at 231-32). This concern seems no greater in this area of the law than in any other. Without a constitutional or legislative directive, I see no reason to resolve conflicts in our circuit or appellate courts where death sentences are being reviewed any differently than we do in any other area of the law. Uniformity could be easily achieved by accepting for review all post-conviction appellate court decisions of cases where death sentences had been imposed at trial. The advantage to this procedure is obvious. In this difficult and painful area, the more minds reviewing the procedures employed by our circuit courts, the more certain we can be about the correctness, fairness and justice of decisions to impose this most final of penalties.
Finally, for the reasons set forth in my separate opinions in People v. Lewis (1981), 88 Ill. 2d 129, 179 (Simon, J., dissenting), People v. Silagy (1984), 101 Ill. 2d 147, 184 (Simon, J., concurring in part and dissenting in part), and People v. Albanese (1984), 104 Ill. 2d 504 (Simon, J., concurring in part and dissenting in part), I believe that the Illinois death penalty statute is unconstitutional, and, therefore, a death sentence should not be imposed on this defendant.