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Creek v. Clark

OPINION FILED NOVEMBER 26, 1980.

JIMMY L. CREEK, PETITIONER-APPELLANT,

v.

HAROLD R. CLARK, CIRCUIT JUDGE OF MADISON COUNTY, ET AL., RESPONDENTS-APPELLEES.



APPEAL from the Circuit Court of Madison County; the Hon. PHILIP RARICK, Judge, presiding.

MR. PRESIDING JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

Rehearing denied December 23, 1980.

Petitioner, Jimmy L. Creek, appeals the dismissal of his petition for habeas corpus by the circuit court of Madison County. Respondents, four judges of the Third Circuit, have moved that the appeal be dismissed as moot.

Creek was charged by traffic citation with driving while under the influence of intoxicating liquor (Ill. Rev. Stat. 1977, ch. 95 1/2, par. 11-501) and improper lane usage (Ill. Rev. Stat. 1977, ch. 95 1/2, par. 11-709) as a result of a November 19, 1978, traffic accident in which one person was killed. Creek posted $100 cash bail. Prior to the appearance date noted on those citations, Creek's counsel notified the trial court that Creek would plead not guilty and requested a jury trial. Also prior to that date an assistant State's attorney filed a motion to dismiss for the reason that "[t]he possibility of felony charges is being investigated." In response to the motion the cause was dismissed. Thereafter Creek was charged by information with reckless homicide. (Ill. Rev. Stat. 1977, ch. 38, par. 9-3.) Creek's bond on this charge was set at $50,000, which he posted by personal recognizance. Later his bond was modified to $25,000 cash and $25,000 personal recognizance, and he posted the requisite $25,000 cash in compliance.

On January 12, 1979, an assistant State's attorney orally moved that the cause be dismissed. The trial court's written order in response to this motion, entered and filed on January 12, 1979, reads in its entirety:

"The above entitled cause having again come on for hearing pursuant to setting and notice for preliminary hearing, on motion of assistant state's attorney Stephanie Robbins, the above entitled cause is hereby dismissed with prejudice.

Defendant's bond ordered discharged according to law.

It is so ordered."

In the lower left margin of the written order the printed legend "Approved" is set forth, beneath which appear the signatures of the assistant State's attorney who made the motion to dismiss and the attorney for the defendant.

On the same date of January 12, 1979, the record sheet of the case contains the following entry:

"Def. appears for Preliminary Hearing. On motion of Assistant State's Attorney Stephanie Robbins, the above entitled cause is hereby dismissed with prejudice. Def. Bond ordered discharged according to law. (See order)."

No transcript of the proceedings in the trial court wherein the assistant State's attorney moved for dismissal appears in the record on appeal. The parties agree the State did not move to vacate the dismissal order or set it aside and did not appeal it. On February 15, 1979, more than 30 days after the purported dismissal with prejudice, the State filed an indictment charging Creek with reckless homicide based on the same incident. Creek moved to dismiss the cause on the basis of the prior dismissal "with prejudice," but the motion was denied. Subsequently the State filed a traffic complaint charging Creek with driving while under the influence of alcoholic liquor.

Creek's motion to dismiss was argued to the trial court and denied without explanation. Creek then instituted the instant habeas corpus action in which he argued, inter alia, that the trial court was without jurisdiction of the cause because the January 12, 1979, dismissal "with prejudice" was a final termination on the merits and subsequent prosecution was barred by res judicata. The petition for a writ of habeas corpus was dismissed after a hearing on the grounds that (1) Creek was not in "custody," (2) he was not in "custody" of the judges named as respondents, and (3) Creek had not exhausted available legal remedies in direct appeal. Creek's petition for rehearing was denied. Creek appeals from that dismissal.

Subsequent to the filing of the briefs in this appeal the respondents moved for dismissal of the appeal on the ground that Creek had since been convicted as charged and that upon sentencing this appeal would become moot. The parties thereafter concurred in a supplementation of the record on appeal which showed that defendant has indeed been sentenced to the Department of Corrections for one year on his conviction of reckless homicide and for six ...


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