People v. Snell
829 N.E.2d 433
Ill. App. Ct.
2005
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*1 ILLINOIS, Plaintiff-Appellee, v. THE PEOPLE OF THE STATE OF SNELL, Defendant-Appellant. JEREMY R.

Fourth District No. 4 - 03-1075 May 26,

Opinion filed

STEIGMANN, J., dissenting. D. Essig, Appellate

Daniel Yuhas and J. Lawrence both of State Defender’s Office, Springfield, appellant. of (Norbert Ferguson, Attorney,

C. Steve State’s of Charleston J. Goetten Biderman, Attorneys Appellate and Robert J. of both Of- Prosecutor’s fice, counsel), People. of for the opinion JUSTICE TURNER delivered the the court: May 2002, charged defendant, Snell, In Jeremy R. one possession methamphetamine-manufacturing count unlawful (count I) one possession chemicals count of unlawful II). (count August controlled substance In defendant pleaded guilty count I a sentence of months’ received filed a 2002 and November

November respectively. supplemental petition dismiss, trial court denied. which the filed a motion trial court erred appeal, On proba- supplemental the State’s motion to dismiss We affirm. double-jeopardy grounds. tion on *2 BACKGROUND I. by information with 2002, charged defendant May

In the State methamphetamine-manufacturing possession count of unlawful one (West 2002)) (720 570/401(c 5) and one count chemicals ILCS — 570/402(c) (720 ILCS substance of a controlled possession unlawful (West 2002)). I, to count 2002, pleaded guilty August In on 30 months’ placed defendant II dismissed. The trial court count was probation. to revoke 2002, petition filed a the State November unlawfully alia, the offense of defendant committed

alleging, inter case No. 02—CF— Clay County in anhydrous ammonia transporting petition to 2003, supplemental filed a the State 62. In November of unlaw- the offense defendant committed probation, alleging container unapproved ammonia anhydrous transportation ful (West 2002)) 1.5(b—5) (720 on or about Clay County ILCS 5/21 — 26, 2002. October dismiss, County case No. arguing Clay to

Defendant filed a motion and he would had been dismissed 02—CF—62 the same facts of proceeded if jeopardy the State subject to double Defendant case in its on the its based proceed not argued the State could also appeal record on estoppel. The judicata and collateral of res doctrines 7, July circuit court on Clay County transcript contains a in case No. a nolle moved to enter 2003, in which acknowledged the McGuire Judge John W Clay County 02—CF—62. explained to motion nol-prossed on cause any him at time against charges refile the State could defendant that also to dismiss Defendant’s motion of limitations. during the statute Judge McGuire 2003, 17, order entered included a November fol- CF—62, read as Snell, County case No. People v. 02— lows: [cjourt, fully being heard, and the coming on to be “This cause case hereby [defendant’s ordered premises, it is advised the 4(a)(1).” ILCS pursuant to 720 [prejudice 5/3 — [dismissed

is hearing on conducted 2003, the trial court In December

493 Clay County found the case defendant’s motion to dismiss. The court Thus, any fact or determined. was dismissed without issues of law apply found did and denied defendant’s mo- double sought appeal, to file the court tion. Defendant an immediate but supplemental petition. proceeded to hear the merits on the revocation witnesses, After the the court found defendant had presentation of Defendant probation sentencing. violated his and set the matter for 604(f) pursuant Supreme then filed a notice of to Court Rule (188 604(f)), permitting interlocutory appeals following Ill. 2d R. denial of a motion to dismiss a criminal grounds jeopardy. former

II. ANALYSIS the trial court erred in his supplemental petition probation dismiss the State’s on the ground jeopardy. of double disagree. We

We find Fifth District’s in People v. (1977), 1212 N.E.2d be instructive this case. In Ill. App. 3d at N.E.2d at the defendant was convicted of burglary probation. During term, sentenced theft, the defendant was charged with misdemeanor and the State filed petition later to revoke probation.

301, 360 at N.E.2d 1212-13. When appeared the defendant for trial on charge, the theft complaint moved to dismiss the and a nolle Howell, App. 301, was entered. Ill. 46 3d at 360 N.E.2d at 1213. At subsequent hearing the the

the trial court denied the defendant’s dismiss based on double-jeopardy grounds. Howell, App. 301, Ill. at 46 3d 360 N.E.2d at 1213. The then court extended the term probation. defendant’s App. 301, 46 Ill. 3d at 360 at 1213. N.E.2d

On appeal, the Fifth District found the issue sole to be “whether the by State is barred the jeopardy doctrines of double and collateral estoppel probation, grounded from on a the offense, commission of a complaint a criminal after criminal based on phrased the same facts and language the same has been prejudice.” Howell, 301, dismissed App. with 46 Ill. 3d at N.E.2d 360 appellate at 1213. The court found the State properly proceed could 301, such a manner. 46 Ill. at 1213. App. 3d 360 N.E.2d at Specifically, the Fifth District the not found defendant had been acquitted, a jeopardy and nolle before had attached prosequi entered preclude did not a subsequent prosecution for the same How- offense. ell, 301, 46 Ill. App. 360 N.E.2d at 1213. The court concluded jeopardy “[n]o had not attached of fact law were because issues or

494 plea, proceeding; guilty criminal there was no no

determined sworn, jurors or witnesses and no evidence was heard.” were 301-02, at App. 3d 360 N.E.2d at 1213. nol-prossed County In the case case judice, sub was 2003, explained charge trial court to defendant the could July be refiled at a later time. dismissal occurred without defendant being placed jeopardy any and without factual determination his guilt plea, no guilty jurors or innocence. There was no or witnesses Thus, sworn, did were and no evidence was heard. not at- tach, proceed proceeding. and the State could with the revocation Creek, v. People he is entitled to relief under 94 (1983). 526, case, 447 supreme Ill. 2d 330 court N.E.2d homicide prosecuted held the could reckless Attorney dismissing made motion because an assistant State’s had a Creek, 528, 2d at prejudice. the cause with at 447 N.E.2d prejudice equivalent dismissal final The court considered a Creek, 533, Ill. 2d at adjudication acquittal. on the merits 94 Judge at written order 447 N.E.2d 333. Defendant contends McGuire’s equivalent was stating defendant’s case was dismissed with facts, disagree. these we to a final merits. On July transcript indicates No. 2003 being nol-prossed. Judge 02—CF—62 was McGuire then commented Thus, statements indicate the case charges. the State could refile purported prejudice. dismissed The November 2003 order was without However, at case with the court prejudice. to dismiss defendant’s no it to As the State did not refile the charge time had before dismiss. prejudice, had no to dismiss with charge, authority court Fako, 312 People void See v. Ill. November 2003 order was ab initio. (2000) (once 313, 734, the defendant’s 316, 3d 726 N.E.2d 738 dismissed, driving a revoked license was ticket for misdemeanor and the court had no charge pending, no misdemeanor charge); Marriage see In re jurisdiction over the dismissed also (orders (1995) Schlam, Ill. 648 N.E.2d initio). ab lacking jurisdiction are void entered case, did not July nol-pros oper- motion to In this the State’s *4 acquittal act on merits or as an ate as a final As Howell found subsequent proceeding. bar a revocation does not estoppel do bar from jeopardy and collateral double court did not probation, a to the trial proceeding petition on revoke motion to dismiss. denying err in defendant’s

III. CONCLUSION stated, judgment. trial For the reasons we affirm the court’s Affirmed. J.,

MYERSCOUGH, concurs. STEIGMANN, dissenting:

JUSTICE I by the trial mo- Because believe court erred defendant’s tion to dismiss the State’s supplemental petition probation to double-jeopardy grounds, respectfully on I dissent. instructive, Indeed, I majority

The finds Howell do I to but not. correctly doubt that the Fifth District Appellate Court Howell even appeal. stated the facts of the case before it on the defendant burglary placed was convicted years’ probation. During probation, two his term filed State charge criminal against of theft him. The filed a petition State later probation, revoke his had alleging the defendant violated the terms of by committing the same theft offense. The Howell court then following: wrote the appeared ready charge,

“When defendant trial on for the theft moved complaint, to dismiss the and a nolle objection. entered over subsequent hearing defendant’s At the probation, the court denied defendant’s mo- tion grounds.” to dismiss based on double[-]jeopardy at3d 360 N.E.2d at 1213. foregoing description hardly remarkable, nothing of events is (1) suggests about it the State would have moved for dismissal (2) prejudice or the trial court would have ordered the dismissal Yet, prejudice. very be with paragraph, next the Howell court the following: wrote sole by

“The issue raised defendant on this is whether the State is barred doctrines of double and collateral estoppel

grounded offense, on the commissionof a criminal after a criminal complaint based on and phrased the same facts in the same added.) language prejudice.” (Emphasis has been dismissed 360 N.E.2d at 1213. provided explanation phrase Howell court no use its of the prejudice,” “with and I by including believe the court erred it. Based upon my years experience in central Illinois criminal courts involving cases, single thousands of I not recall a in which do instance either the State moved dismiss a case with or *5 granted the dismiss and added those words.

court State’s Yet, value, the phrase prejudice” if to be at face “with Howell is taken afterthought, given Fifth District did not appears that the to be description proceed- phrase in its initial court even include the Fifth complaint. State the All ings when the moved dismiss that the nolle was entered District mentioned was State’s objection. over defendant’s authority provides for the

Leaving questionable aside the Howell decision, Creek, in supreme court decision majority’s the more recent this to reverse the trial requires 447 N.E.2d County circuit court’s and conclude that the judgment court’s to a final equivalent on the facts was prejudice dismissal with same merits, barring County the State Coles thereby the majority to revoke defendant’s using those facts legitimacy of the by questioning application seeks to avoid Creek’s However, not ac- court should Clay County circuit order. this court’s upon this as a attack cept effort to use collateral State’s proceedings. legitimacy Clay County challenge If the wished to State there, pending dismissing prejudice order circuit court’s acquiesce Clay County. State cannot it should have done so Attorney) to a (through Clay County the actions of effect, then, try Clay County dismissal with peti- when it serves to bar upon attack that order mount collateral county of this state. tion to another WHITE, Secretary BERG, Plaintiff-Appellant, v. JESSE B. ERIC Illinois, Defendant-Appellee. District 4 - 04-0269

Fourth No. May Opinion filed