Appeal from the Appellate Court for the Fourth District; heard
in that court on appeal from the Circuit Court of Livingston
County, the Hon. Samuel Harrod III, Judge, presiding.
MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:
Defendant, John McCutcheon, was indicted in Livingston County for the felony of indecent liberties with a child (Ill. Rev. Stat. 1969, ch. 38, par. 11-4) and the misdemeanor of contributing to the sexual delinquency of a child (Ill. Rev. Stat. 1969, ch. 38, par. 11-5) for engaging in a single act of sexual intercourse with a 15-year-old girl. Pursuant to a plea agreement, defendant pleaded guilty to the misdemeanor and the State nol-prossed the felony. Judgment was entered and defendant was sentenced to one-year imprisonment. On appeal, the appellate court vacated the guilty plea for noncompliance with the requirements of Supreme Court Rule 402 (50 Ill.2d R. 402) regarding guilty pleas, and remanded, allowing defendant to plead anew.
At the jury trial and after the State reinstated the felony count of indecent liberties, defendant was convicted of both indecent liberties and contributing to the sexual delinquency of a child and sentenced to 364 days with no credit for time served after the guilty plea was vacated. The State and defendant agreed that under the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005-5-4), McCutcheon could not receive a sentence more severe than the original sentence of one-year imprisonment. The appellate court, holding that the reinstatement of the indecent liberties charge was barred by the double jeopardy provisions of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 3-4), reversed (41 Ill. App.3d 296). We granted the State leave to appeal.
McCutcheon's contentions before us are the same contentions he raised before the appellate court. First, the reinstatement of the felony count of indecent liberties was barred by the double jeopardy provisions; second, entry of judgment on the felony conviction (for indecent liberties) violated both the resentencing provisions of the Unified Code of Corrections and due process of law; and third, charges which have been nol-prossed may not be reinstated.
As the defense correctly points out, section 3-4(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 3-4(a)) provides that a "conviction of an included offense is an acquittal of the offense charged." (See People v. Newman (1935), 360 Ill. 226; People v. Carrico (1923), 310 Ill. 543; Barnett v. People (1870), 54 Ill. 325; Brennan v. People (1854), 15 Ill. 511.) In section 2-5 of the Code (Ill. Rev. Stat. 1973, ch. 38, par. 2-5) "conviction" is defined as "a judgment of conviction or sentence entered upon a plea of guilty or upon a verdict or finding of guilty of an offense * * *." On the issue of whether a judgment on a plea of guilty to a lesser offense (the result of negotiations in which the defendant agrees to plead guilty to a lesser included offense while the State agrees to dismiss the greater offense) is an acquittal of a greater offense, it seems that a defendant could not be prosecuted for the greater offense. We believe, however, that what is apparent is deceptive.
The Criminal Code of 1961 provides that "[f]or the purposes of this Code, the words and phrases described in this Article have the meanings designated in this Article, except when a particular context clearly requires a different meaning." (Emphasis added.) (Ill. Rev. Stat. 1973, ch. 38, par. 2-.5.) The "particular context" of double jeopardy clearly calls for "a different meaning" of conviction where a plea of guilty is the basis for a "conviction."
In the first place, the "double jeopardy implications reverberating from a guilty plea and a jury verdict are not identical" even though a "guilty plea is as final as a jury verdict." (Ward v. Page (10th Cir. 1970), 424 F.2d 491, 493.) The finding of guilty on a lesser charge by the trier of fact is presumptively a finding of not guilty on the greater offense since the trier of fact has the opportunity to find the defendant guilty of the greater offense. (See, e.g., Brennan v. People (1854), 15 Ill. 511, 518-19.) Where the defendant pleads guilty to a lesser offense, however, there is no finding or verdict of conviction or acquittal on the greater offense. Parenthetically, the appellate court's construction of the double jeopardy provisions conflicts with the Criminal Code's definition of "acquittal": "Acquittal means a verdict or finding of not guilty of an offense, rendered by a legally constituted jury or by a court of competent jurisdiction authorized to try the case without a jury" (Ill. Rev. Stat. 1973, ch. 38, par. 2-1).
One of the purposes of the protection against double jeopardy is to protect an "accused from the unfair harassment of successive trials." (United States v. Goldman (3d Cir. 1965), 352 F.2d 263, 266.) Unfair harassment occurs only if jeopardy has already attached to an offense charged. That is not the case here. Jeopardy attached only at the time the guilty plea was accepted by the court (Annot., 75 A.L.R.2d 683 (1961 & Supp. 1968)) and logic dictates that jeopardy would attach only to the crime pleaded to since there has been no other finding of any sort. (The court only determines whether the plea is voluntary and whether there is a factual basis for the plea.) Since defendant was never exposed to the danger of a trial on the charge of indecent liberties with a child, he cannot claim an acquittal on that charge or protection by reason of prior jeopardy.
In short, defendant's first successful appeal of his guilty plea placed him in the position he held prior to the plea or in the position he would have held had he been allowed to withdraw his plea. The appellate court's mandate to plead anew encompassed starting the process over. Accordingly, there was nothing to prevent the State from reinstating the greater charge. Defendant made clear his intention of seeking a jury trial. Fairness for the interests of the People demands that the State not be bound by a plea agreement, once a condition of that agreement (the guilty plea) is no longer valid.
Plea negotiations, as the United States Supreme Court recently noted, are a useful, albeit criticized, tool in the administration of justice:
"[T]he guilty plea and the often concomitant plea bargain are important components of this country's criminal justice system. Properly administered, they can benefit all concerned. The defendant avoids extended pretrial incarceration and the anxieties and uncertainties of a trial; he gains a speedy disposition of his case * * *. Judges and prosecutors conserve vital and scarce resources." (Blackledge v. Allison (1977), 431 U.S. 63, 71, 52 L.Ed.2d 136, 145, 97 S.Ct. 1621, 1627. See also People v. Pier (1972), 51 Ill.2d 96, 99.)
Allowing the defendant to benefit by the lapsed agreement while not giving the State the same flexibility is inconsistent with the policy considerations of both double jeopardy and plea negotiation. (Cf. Santobello v. New York (1971), 404 U.S. 257, 30 L.Ed.2d 427, 92 S.Ct. 495.) Indeed, the State is much less likely to enter into plea negotiations if it realizes its decision to dismiss is irrevocable while the defendant's decision to plead is revocable.
Finally, our own rules anticipate this situation. Rules 604 and 605 (58 Ill.2d Rules 604, 605) allow a defendant to move to withdraw a plea in circuit court; upon doing so, however, the defendant must be warned that dismissed charges may be reinstated by the State if the motion to withdraw a plea is allowed. As the State points out, the State may reinstate charges upon a successful withdrawal of a plea in the circuit court, but under the appellate court's holding here, the State may not reinstate dismissed charges upon a vacation of the plea by the reviewing court. We do not believe this is called for. Although defendant rightly points out those rules were not in effect at the ...