APPEAL from the Circuit Court of Lake County; the Hon. THOMAS
R. DORAN, Judge, presiding.
MR. JUSTICE ABRAHAMSON DELIVERED THE OPINION OF THE COURT:
On September 28, 1970, the defendant, Arthur R. Loevy, was charged with the offense of disorderly conduct under the provisions of Section 33 of Chapter 71 of the Waukegan City Ordinance in that he broke a pane of glass in a door of the city hall. On September 30, Loevy was charged with the offense of criminal damage to property not exceeding $150.00 in violation of Section 21-1(a) of Chapter 38 of the Illinois Revised Statutes based on the same act.
Loevy appeared in court with his attorney on September 30 on the State charge and entered a plea of not guilty and demanded a trial by jury. A colloquy then took place between the court, defense counsel and the assistant state's attorney in regard to the pending ordinance violation. The trial judge first indicated that the charges would be merged but then corrected himself and said he would dismiss the first case and set the second cause for trial on October 23. The defense counsel next asked if the ordinance violation could be dismissed with prejudice and the exchange continued as follows:
"THE COURT: Since the gist of both charges is the same, the action is the same. Really, there is no need to not grant that motion. I think that it should be granted with prejudice because it is proceeding on a criminal charge. No point, we are trying to get away from the separation.
MR. WITT (the assistant state's attorney): The only thing I am a little bit hesitant, it may prosecute (sic) on any related offense arising out of that disorderly conduct.
THE COURT: Let's limit and make the order to that effect that this is dismissed with prejudice as to the ordinance violation as stipulated on.
MR. COPLAND (defense counsel): Alleged event that occurred.
THE COURT: Limited to that.
The court then entered the following order:
"On Motion of Edward J. Copland, Attorney for Defendant
It Is Hereby Ordered that the charges against the defendant under Chapter 71 Section 33 of the City Ordinance of the City of Waukegan, Illinois, be and are hereby dismissed, with prejudice. Said dismissal being to the Ordinance violation and to no other civil action."
On October 23 the cause was continued, by agreement, to November 30 for trial. On that date, the defendant, with new counsel, moved to dismiss the second complaint on the grounds that the dismissal with prejudice of the first case was a final adjudication of the merits therein and that his subsequent prosecution for the same act violated his constitutional protections against double jeopardy and violated section 3-4 (a) (2), 3-4(b) (2) and 3-4(b) (3) of the Criminal Code. The trial court granted the motion and the State has appealed pursuant to Section 604 of the Supreme Court Rules. Ill. Rev. Stat. 1969 ch. 110A sec. 604.
The defendant readily admits that the dismissal of the ordinance violation on September 30 was a mistake and that none of the parties present intended or believed that the dismissal would affect the prosecution under the state charge. However, the defendant contends, it is not the intent of the court that is determinative of the matter but rather the "operation of the law" and that, in this ...