APPEAL from the Circuit Court of Adams County; the Hon. CECIL
J. BURROWS, Judge, presiding.
MR. PRESIDING JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:
Following a jury trial in the circuit court of Adams County, defendant, Raymond Vahle, was convicted of burglary and sentenced to a term of 1 1/2 to 5 years' imprisonment to be served concurrently with a 1 to 3 year sentence he was then serving.
Defendant presents three issues for review. First, he claims the doctrines of double jeopardy and collateral estoppel barred the State from bringing him to trial for burglary after having first revoked his probation based on his commission of the same offense. Second, he claims the prosecutor's remarks to the jury during closing argument were improper and denied him a fair trial. Finally, defendant argues that he is entitled to credit for time spent in custody prior to his release on bond on the burglary charge and also for time he spent in custody pending revocation of his probation.
On November 25, 1975, a Kentucky Fried Chicken restaurant in Quincy, Illinois, was burglarized, and defendant and his uncle, Jerome Vahle, were arrested the same night and charged by information with the burglary. Defendant posted bond on December 1 and was released. Subsequently it was learned that defendant was on probation for an earlier burglary (Case No. 73-CF-120), and a petition to revoke probation was filed on the grounds that defendant had violated the terms of his probation by committing the Kentucky Fried Chicken burglary. Defendant was reincarcerated January 7, 1976, on the probation revocation charge and has remained in custody since that time, having been unable to post the $10,000 bond.
A probation revocation hearing was held in March 1976. The State presented testimony of three police officers and the owner of the burglarized restaurant. Defendant countered with his own testimony and that of his uncle, but the court determined that a preponderance of the evidence indicated defendant had violated his probation by committing the burglary. On April 26, 1976, the court imposed on defendant a sentence of 1 to 3 years in Case No. 73-CF-120.
Defendant and his Uncle Jerome were tried for burglary by a jury on June 15, 1976. The same witnesses who had testified at the revocation hearing testified at the trial, except that the manager of the burglarized restaurant, rather than the owner, testified at trial. Officer Maddox of the Quincy Police Department stated that he was driving home from work at approximately 4 a.m. on November 25, 1975, when he saw a car with its engine running parked in front of the Kentucky Fried Chicken restaurant. Maddox also observed a person crouching next to the restaurant and when the officer pulled his car next to the parked car, the person who had been crouching ran to the back of the building and disappeared. The glass front door of the restaurant was broken out and two sets of footprints led from the car to the door, while only one set of prints led back from the restaurant to the parked car. Jerome Vahle was sitting in the passenger side of the car and Maddox arrested him.
Officer Watercutty testified that he went to the Kentucky Fried Chicken restaurant on the night in question to assist Maddox and that they both followed the tracks of the fleeing person to 15th and Jackson Streets. The defendant was arrested at 15th and Ohio Streets shortly thereafter, and Officer Maddox testified that defendant was the man he had seen fleeing from the restaurant. Glass particles were embedded in the bottom of defendant's shoes.
Defendant and Jerome Vahle admitted they were at the Kentucky Fried Chicken restaurant at the time in question, but denied committing the burglary. Defendant testified he noticed the broken glass door while driving past the restaurant and stopped to investigate the damage. Defendant explained that he fled when Officer Maddox arrived because he was on probation. The jury returned verdicts finding both Raymond Vahle and Jerome Vahle guilty of burglary.
Defendant's first contention on appeal is that the doctrines of double jeopardy and collateral estoppel barred the State from bringing him to trial on the charge of burglary after having first revoked his probation on the grounds that he had committed the same offense. Defendant cites People v. Grayson (1974), 58 Ill.2d 260, 319 N.E.2d 43, in which our supreme court, relying on Ashe v. Swenson (1970), 397 U.S. 436, 25 L.Ed.2d 469, 90 S.Ct. 1189, held that the acquittal of a defendant on a charge of armed robbery precluded the State from subsequently revoking the defendant's probation based upon his commission of the same crime. The court reasoned that because an issue of ultimate fact, whether defendant was the armed robber, had been determined by a valid and final judgment, the State was collaterally estopped from relitigating that issue in any subsequent action. Defendant contends that in the instant case the only real issue of ultimate fact, his credibility, was decided at the probation revocation hearing and thus the State was estopped from relitigating that issue in a burglary trial.
1 The Second District Appellate Court in People v. Warne (1976), 39 Ill. App.3d 894, 350 N.E.2d 836, cert. denied (1977), 429 U.S. 1107, 51 L.Ed.2d 559, 97 S.Ct. 1139, decided precisely the issue presented here by distinguishing Grayson and holding that the State was collaterally estopped from relitigating an issue in a second prosecution only if the earlier decision on that issue negatived the possibility of guilt in the later prosecution. In Warne, as in the case at bar, the probation revocation hearing resulted in a finding that defendant committed the criminal act, and the court therefore ruled that the State was not precluded from prosecuting the defendant on the burglary charge. The view in Warne was followed in People v. Howell (1977), 46 Ill. App.3d 300, 360 N.E.2d 1212. Defendant Vahle acknowledges this adverse ruling, but urges this court to refuse to accept the "artificial limitation" placed on Grayson.
We believe the Warne court's limitation on Grayson was proper and is controlling here. As the Supreme Court noted in Ashe, the doctrine of collateral estoppel as applied in criminal cases is a narrow one. Justice Stewart went to great lengths to point out that at Ashe's first trial, "The single rationally conceivable issue in dispute before the jury was whether the petitioner had been one of the robbers. And the jury by its verdict found that he had not." (397 U.S. 436, 445, 25 L.Ed.2d 469, 476, 90 S.Ct. 1189, 1195.) It was the jury's determination of that factual issue in a manner favorable to the defendant which precluded the subsequent relitigation of the same issue in Ashe's second trial. Justice Stewart noted:
"The question is not whether Missouri could validly charge the petitioner with six separate offenses for the robbery of the six poker players. It is not whether he could have received a total of six punishments if he had been convicted in a single trial of robbing the six victims. It is simply whether, after a jury determined by its verdict that the petitioner was not one of the robbers, the State could constitutionally hale him before a new jury to litigate that issue again." (397 U.S. 436, 446, 25 L.Ed.2d 469, 477, 90 S.Ct. 1189, 1195.)
Similarly, Justice Underwood, in Grayson, pointed out that the decision of the court in that case was based on "the circumstances present here," the circumstances being the acquittal of the defendant based on the jury's determination that he was not one of the robbers. (Grayson, 58 Ill.2d 260, 265, 319 N.E.2d 43, 46.) It was the prior acquittal which served as the gravamen of both the Ashe and Grayson decisions.
2 In the present case defendant was not acquitted at the revocation of probation hearing; he was convicted. The trier of fact at the first proceeding did not find that defendant was not one of the burglars, but, on the contrary, found that defendant had committed the act charged. There was no determination made in the revocation proceeding which negated the possibility of guilt in the later prosecution (Annot., 9 A.L.R.3d 203, 225, 243 (1966)), nor was the result of the earlier hearing inconsistent with the conviction of defendant in the subsequent trial. Therefore, we conclude that collateral estoppel, as enunciated in Grayson and Ashe, is inapplicable to the instant case, and the State was not precluded under that doctrine from trying defendant for burglary after having first revoked his probation based on his commission of the same criminal act.
3 Furthermore, we also agree with the Warne court that defendant's reliance on the doctrine of double jeopardy is misplaced. The constitutional concept of double jeopardy prevents multiple prosecutions and punishments for the same offense. (North Carolina v. Pearce (1969), 395 U.S. 711, 23 L.Ed.2d 656, 89 S.Ct. 2072.) But, defendant in the instant case was not twice tried or punished for the same offense. In the revocation of probation hearing, defendant was tried for violating the terms of his probation, not for the substantive offense of burglary. The revocation of his probation was not punishment for the subsequent offense of burglarizing the Kentucky Fried Chicken restaurant. Rather, revocation of probation was a delayed sentencing for the criminal act of which defendant was originally convicted. (People v. Morgan (1965), 55 Ill. App.2d 157, 204 N.E.2d 314.) In other words, at the revocation proceeding defendant Vahle was sentenced to a term of 1 to 3 years for the burglary he committed in Case No. 73-CF-120. In the instant case, defendant was sentenced to 1 1/2 to 5 years for the burglary of the Kentucky Fried Chicken restaurant. Both the offenses and the punishments were separate and distinct. (People v. Hairston (1970), 46 Ill.2d 348, 263 N.E.2d 840.) A probationer who commits criminal acts is liable for the consequences of such acts both by indictment and conviction for the crime, and by having his probation revoked. The two are not mutually exclusive nor does one bar the other. We find the proper rule succinctly stated in 22 C.J.S. Criminal Law § 240, at 631 (1961): "If probation * * * is revoked because of an allegation that accused has subsequently committed another crime, his trial for such crime does not constitute double jeopardy."
Had defendant been tried and convicted on the second burglary charge before the revocation proceeding, we would not say that a hearing to revoke his probation on grounds of his prior conviction was double jeopardy. The case at bar is merely the reverse side of the coin. Were we to find double jeopardy in this case, then a convicted criminal who receives probation would know that he can commit another crime and receive only one prison sentence for the two separate crimes. "Two crimes for the price of one" is not the kind of bargain that should be tolerated.
The attempt by defendant to require this court to consider probation revocation proceedings and criminal proceedings based on the same underlying criminal conduct as alternatives and elect between them was raised once before without success. (See special concurrence of Stouder, J., in People v. Whitt (1974), 16 Ill. App.3d 824, 828-29, 306 N.E.2d ...