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People v. Bone

OPINION FILED APRIL 10, 1979.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

MICHAEL L. BONE, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Macon County; the Hon. RODNEY A. SCOTT, Judge, presiding.

PER CURIAM:

Defendant, Michael L. Bone, entered a plea of guilty to a charge of aggravated battery on July 26, 1976, and was sentenced to 2 years' probation. The State later unsuccessfully attempted to revoke Bone's probation by charging him with drug sales that occurred on both July 20, 1977, and August 2, 1977.

At the probation revocation hearing, the State presented evidence pertaining solely to the July 20 transaction. This evidence included the testimony of a drug agent who acknowledged that a report he prepared regarding the incident indicated that the individual from whom he purchased the drugs had a tattoo on his left shoulder. The agent admitted that when he examined defendant's left shoulder no tattoo was visible. After hearing the evidence, the trial court denied the State's petition, finding that the offense in question had not been proved. The trial court rested its decision on the fact that Bone did not have a tattoo on his left shoulder.

Subsequently, on February 28, 1978, defendant was convicted of the August 2 offenses of unlawful possession and unlawful delivery of a controlled substance. Prior to that trial, defense counsel had argued that the ruling made at Bone's probation revocation hearing concerning the July 20 transaction should bar the State from proceeding with the present prosecution because of the doctrine of collateral estoppel. Defense counsel argued that since Bone had been charged with both the July 20 and August 2 transactions, it made no difference that no evidence was presented concerning the August 2 transaction. The trial court, however, denied the defendant's motion to dismiss, noting that the evidence presented at the probation revocation hearing concerned a transaction other than one for which the defendant was now on trial.

Following the criminal conviction, a second petition to revoke defendant's probation on the aggravated battery charge was filed. This petition alleged that defendant had violated the terms of his probation because of the convictions for delivery and possession of a controlled substance stemming from the August 2 transaction.

Bone filed a motion to dismiss the revocation petition on double jeopardy grounds. The gist of the motion concerned the fact that a prior motion to revoke had charged Bone with the delivery and possession on August 2, 1977, and had been dismissed by the trial court. Accordingly, defendant contended that double jeopardy prevented the State from again attempting to revoke his probation with the August 2, 1977, criminal activity. The trial court, however, once again denied the motion to dismiss, finding that no evidence had been presented at the prior revocation hearing concerning the August 2, 1977, criminal activity and that the previous revocation petition had been denied solely because the State had not proved by a preponderance of the evidence that defendant had committed the July 20, 1977, crime.

The court then proceeded to the merits of the issue and took judicial notice of defendant's conviction for the August 2 drug transaction. Accordingly, the trial court found that Bone had violated the terms of his probation, revoked that probation, and sentenced him to a 2-year term of imprisonment with the provision that he receive no credit for time previously served on probation.

The probation revocation and the criminal conviction have been consolidated on appeal, and Bone raises numerous issues in regard to both proceedings.

The court holds that, under the circumstances of this case, the defendant could not be convicted of the August 2 drug transaction, and that defendant's probation on the aggravated battery charge was improperly revoked on the basis of such conviction. Accordingly, the judgment of the circuit court of Macon County entered on defendant's conviction for the August 2 drug transaction is reversed, and the order of the circuit court of Macon County revoking defendant's probation on the aggravated battery charge is also reversed.

Reversed.

Mr. JUSTICE MILLS, concurring:

If the State alleges in a petition to revoke probation that a defendant committed a particular crime, inter alia, and the petition is denied by the trial court after a hearing on the merits but where no evidence is presented on this specific offense set forth, can that defendant be subsequently prosecuted for that particular substantive offense itself?

No — double jeopardy.

Illinois decisions have recognized that, although the differences between a criminal trial and a probation revocation hearing are substantial, the doctrine of collateral estoppel does not allow the State to relitigate issues in one proceeding — be it trial or probation revocation hearing — that have been decided against it in the other proceeding. People v. Grayson (1974), 58 Ill.2d 260, 319 N.E.2d 43, cert. denied ...


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