APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
J. COLLINS, Judge, presiding.
MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
The defendants were indicted three times for alleged violation of section 3(1)(a) of the Illinois Antitrust Act. (Ill. Rev. Stat. 1977, ch. 38, par. 60-3(1)(a).) This appeal involves the dismissal of the third indictment. The trial court dismissed this charge as defective, but denied a motion which sought to have the indictment dismissed on the grounds of prosecutorial misconduct.
The State appeals from the dismissal, and the defendants attempt to cross-appeal from the interlocutory order denying their other motion. Six of the defendants (Keystone Automotive Plating Corp., Action Bumper Co. Inc., Mc Vittie Plating Co., Charles Hogarty, Daniel Gilbert, and George Lindquist) were dismissed during the appeal, but the prosecution proceeds against Falkner Bumper, Inc., Robert Manewitz, Bobby Falkner and William Lynch.
A threshold issue raised by the defendants is whether the doctrine of collateral estoppel bars the State from contending that the indictment is sufficient when the State voluntarily dismissed a prior appeal in which an almost identical indictment, involving the same defendants, was also dismissed as defective. The issues presented by the State's appeal are whether the indictment (1) charges an offense within the reach of the applicable statute of limitations; (2) charges an offense with sufficient specificity and certainty; (3) violates the prohibition on ex post facto laws by charging that the alleged conspiracy began before the effective dates of the Antitrust Act and an amendment which increased the penalty for the offense; and (4) improperly charges vertical price fixing which is not proscribed by section 3(1)(a). Additionally, we must consider whether we have jurisdiction to decide the cross-appeal.
The defendants were originally indicted in February of 1979. That indictment was dismissed on October 16, 1979, on the grounds that it was defective. After the State filed a prompt notice of appeal, the October 1979 grand jury returned two indictments which, the defendants concede, are an "almost verbatim" repeat of the dismissed indictment. (The third indictment apparently was returned because of a typographical error in the second indictment. When the latest indictment was returned, the second charge was dismissed.) The defense then argued that the first appeal and the third indictment were "based on the same cause of action" and that, as a result, they were unfairly required to litigate the same case simultaneously in separate forums. The State responded by moving to dismiss the first appeal, and we granted this motion.
• 1 According to the defense, the State is estopped from bringing this appeal because it voluntarily dismissed a prior appeal which involved the same issues and the same parties. We find that this question is controlled by section 114-1(e) of the Criminal Code of 1961. (Ill. Rev. Stat. 1977, ch. 38, par. 114-1(e).) This section provides that dismissal of a charge for any one of several specified reasons, including failure to state an offense, "shall not prevent the return of a new indictment * * *." Ill. Rev. Stat. 1977, ch. 38, par. 114-1(e).
The obvious purpose of section 114-1(e) is to preclude use of collateral estoppel against the State if an indictment is dismissed and the defendant is not re-indicted until after the dismissal has become final. And, we find no reason for concluding that the initial notice of appeal was a binding election which makes section 114-1(e) inapplicable. In this case, the first indictment was dismissed on the grounds that it did not properly charge an offense. Consequently, we conclude that section 114-1(e) precludes the use of collateral estoppel against the State.
The defense relies on People v. Colletti (1978), 61 Ill. App.3d 289, 377 N.E.2d 1276, but that case is not controlling because it did not refer to or consider the effect of section 114-1(e). The defense also relies, by analogy, on the civil rule that the issue of the propriety of striking a complaint is waived when the plaintiff pleads over. In light of section 114-1(e), we find that the argument based on this analogy is unpersuasive.
• 2 Even though the third indictment was returned on October 31, 1979, and it alleges that the defendants participated in a price fixing conspiracy which existed from October 1975 until August 1978, they contend that this does not charge an offense which is within the reach of the applicable four-year statute of limitations (Ill. Rev. Stat. 1977, ch. 38, par. 60-6(2)). To reach this conclusion the defendants use a multi-step analysis.
First, they point out that an element of the general conspiracy statute (Ill. Rev. Stat. 1977, ch. 38, par. 8-2(a)) is proof of an overt act in furtherance of the conspiracy. Based on this other statute, the defendants assume that violation of section 3(1)(a) of the Antitrust Act also requires, as an element of the offense, proof of an overt act in furtherance of the conspiracy.
Armed with this assumption, the defendants point out that only one of the overt acts alleged in the indictment includes a date: an alleged summit meeting at Batt's Restaurant in Chicago "in or about November of 1975." And, even though a November 1975 overt act would appear to be within the statute of limitations for an indictment returned on October 31, 1979, the defendants argue that grand jury testimony shows that the meeting actually occurred during the last week of October 1975. Thus, the defendants conclude that the indictment does not charge an offense within the limitations period.
We conclude that, even if an indictment charging a violation of section 3(1)(a) must allege an overt act within the preceding four years, the present indictment meets such a requirement. The first indictment was returned in February of 1979, and the alleged meeting at Batt's was well within the four-year limitation period, whether the meeting occurred in October or November of 1975. Although that indictment was dismissed, the State filed an appeal which was pending when the present indictment was returned. Moreover, the October 31 indictment refers to the ...