APPEAL from the Circuit Court of Jackson County; the Hon.
RICHARD E. RICHMAN, Judge, presiding.
MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THIS COURT:
This is an appeal by the State from the judgment entered by the circuit court of Jackson County dismissing the charge of unlawful use of weapons filed against defendant, Thomas J. Kondo. The only question presented for review is whether the denial of a petition for revocation of probation collaterally estops the State from subsequently prosecuting the defendant for the offense which was the sole grounds for the petition.
From the record it appears that on October 30, 1975, defendant pled guilty in the circuit court of Williamson County to the offenses of aggravated assault, and battery for which offenses he received a sentence of probation. On January 7, 1976, defendant was charged with the instant offense; "* * * in that he did knowingly carry concealed on his person, a .22-caliber automatic pistol * * *." On February 20, 1976, a petition for revocation of probation was filed in the circuit court of Williamson County alleging the commission of the instant offense as the sole grounds therefore. A hearing was held on the petition on August 13, 1976, wherein evidence was presented consisting of the purported weapon and the testimony of two witnesses. The defense theory was that defendant was transporting the weapon broken down in a nonfunctioning state. Following the hearing the court denied the petition upon the finding that the weapon had been broken down into a nonfunctioning state. (Ill. Rev. Stat. 1975, ch. 38, par. 24-2(b)(4).) Subsequently, defendant moved to dismiss the instant charge with prejudice claiming res judicata. At a hearing on the motion before the trial court, the parties agreed that the only disputed factual issue in the case was whether the weapon was in a nonfunctioning state so that "the weapon was, in fact, not a weapon." The State argued that it was not bound by the Williamson County circuit court's prior finding on this issue. The trial court, however, ruled that since the issue had been tried and determined upon the merits in the Williamson County revocation of probation hearing, such was binding upon the trial court and accordingly the court granted defendant's motion.
On appeal, the State contends that the finding at the probation revocation hearing was not a final judgment and was not binding in the subsequent criminal proceeding under any of the theories of collateral estoppel, res judicata or double jeopardy. More precisely, we narrow our focus upon the theory of collateral estoppel.
• 1 It has been held that the State may both seek to revoke a defendant's probation and seek a criminal conviction based on the same conduct. (People v. Howell, 46 Ill. App.3d 300, 360 N.E.2d 1212, People v. Warne, 39 Ill. App.3d 894, 350 N.E.2d 836.) As we stated in Howell:
"A sentence imposed upon revocation of probation is not considered punishment for the offense which led to the revocation proceedings, but for the original crime. Thus there is no question of double jeopardy, or of being punished twice for the same offense." (46 Ill. App.3d 300, 302, 360 N.E.2d 1212, 1213.)
The question arising here, however, is whether, if the result of probation revocation proceeding is inconsistent with the charge of the subsequent offense, may not defendant be aided by the doctrine of collateral estoppel?
In Ashe v. Swenson, 397 U.S. 436, 443, 25 L.Ed.2d 469, 475, 90 S.Ct. 1189, 1194, the court stated:
"`Collateral estoppel' is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." See also People v. Haran, 27 Ill.2d 229, 188 N.E.2d 707; People v. Williams, 59 Ill.2d 557, 322 N.E.2d 461.
In People v. Grayson, 58 Ill.2d 260, 319 N.E.2d 43, cert. denied, 421 U.S. 994, 44 L.Ed.2d 484, 95 S.Ct. 2001, our supreme court applied collateral estoppel where the defendant was first acquitted of the charge of armed robbery but his probation was subsequently revoked based on the commission of the same offense. The court found that the only disputed issue in the criminal trial and the probation revocation proceedings was the identity of the robbers and that the acquittal of the defendant at the prior trial was a determination that he was not one of the robbers. In reversing the revocation of the defendant's probation, the court held:
"While the differences between a criminal trial and a probation revocation hearing are substantial * * * we believe those differences cannot fairly serve to permit relitigation of the identical issue upon the same evidence. (People v. Armstrong, 56 Ill.2d 159.) Although proceedings may be civil in form, they may be criminal in nature [citation], and the individual facing probation revocation may lose his liberty just as swiftly and surely as a defendant in a criminal case. We accordingly hold the principle of collateral estoppel applies in the circumstances present here." 58 Ill.2d 260, 264-65, 319 N.E.2d 43, 45-46; see also Annot., 76 A.L.R.3d 564, 569 (1977).
In the instant case, the State contends that the facts are sufficiently distinguishable from Grayson that collateral estoppel cannot be similarly applied. The distinction urged by the State is that, in the case at bar, the court's finding at the prior probation revocation hearing did not result in the conviction or acquittal of defendant of the offense and therefore, the State argues, that determination was not a final judgment binding on the issue adjudicated. We find no merit to the State's contention.
• 2, 3 It is not the form that the prior adjudication assumes, but the substance of the prior adjudication which is determinative of whether collateral estoppel may be properly applied. As stated in 46 Am.Jur.2d Judgments § 457 (1969):
"The doctrine of collateral estoppel does not require a judgment which ends the litigation and leaves nothing for the court to do but execute the judgment, but includes many dispositions which, though not final in ...