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Creek v. Clark





Appeal from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of Madison County, the Hon. Philip Rarick, Judge, presiding.


Rehearing denied November 25, 1981.

The defendant, Jimmy L. Creek, was charged by indictment in the circuit court of Madison County with reckless homicide. He moved to dismiss the indictment, claiming that the dismissal of a prior information based on the same occurrence prevented the State from subsequent prosecution. After defendant's motion was denied, he petitioned for a writ of habeas corpus alleging the same grounds as in the motion to dismiss. This motion was also denied. Defendant appealed the denial of the habeas corpus petition, and a majority of the appellate court reversed. (91 Ill. App.3d 429.) The State appeals.

A full recitation of the procedural history of this case is necessary to an understanding of the issues. Defendant was initially charged by complaint with driving while under the influence of intoxicating liquor and improper lane usage resulting from a November 19, 1978, traffic accident. These charges were dismissed on a motion by the State for the reason that the "possibility of felony charges is being investigated." Defendant was thereafter charged by information with reckless homicide. He was released on bond pending trial.

On January 12, 1979, before the preliminary hearing was to commence, an assistant State's Attorney orally moved to dismiss the information. In response, the trial court entered the following order:

"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."

The word "Approved" is written at the bottom corner of the order beneath which appear the signatures of the assistant State's Attorney and defendant's attorney. No transcript of these proceedings appears in the record on appeal.

On February 15, 1979, over 30 days after entry of the order, defendant was charged by indictment with reckless homicide based on the same incident; he was again released on bond. Subsequently, the State filed a complaint charging him with driving while under the influence of intoxicating liquor. His motion to dismiss the indictment, which was denied, was based on the premise that the former dismissal "with prejudice" acted to bar subsequent prosecution by reason of double jeopardy, collateral estoppel, res judicata and lack of jurisdiction. After a hearing was held, the trial court dismissed the petition, finding that (1) habeas corpus proceedings are not available to a defendant released on bail; (2) the respondent judges named in the writ did not have actual custody of defendant; and (3) defendant had not exhausted his legal remedies, in that he should have proceeded to trial on the pending charge and, if convicted, then should have appealed the issues raised in his motion to dismiss.

During the pendency of defendant's appeal of the dismissal of his habeas corpus petition, defendant was found guilty of reckless homicide and driving while under the influence of intoxicating liquor. The record in the instant case was supplemented to show defendant's convictions. Respondents then filed a motion to dismiss the appeal on the grounds that defendant's conviction rendered moot his contention that he not be subjected to trial on the criminal charges. The record before us fails to reveal a notice of appeal from the criminal convictions. Relying on Supreme Court Rule 366(a)(5) (73 Ill.2d R. 366(a)(5)) the appellate court "fashioned a remedy for defendant" by finding that "the trial court should have properly treated the petition [for a writ of habeas corpus] as a motion to dismiss the prosecution, vacated the conviction and discharged defendant." (91 Ill. App.3d 429, 433.) To support this conclusion the court found that "by use of the term `with prejudice' the dismissal of the reckless homicide charges constituted a final adjudication and a bar to the subsequent prosecution by indictment." (91 Ill. App.3d 429, 435.) It then ruled that the dismissal "with prejudice" became final 30 days after its entry and rendered the trial court without jurisdiction to proceed with the subsequent prosecution.

We first address the question of whether the appellate court had jurisdiction to reverse the criminal convictions of defendant under Supreme Court Rule 366(a)(5). The State contends that the appellate court was without power to reverse defendant's criminal convictions since notice of appeal had not been filed from those convictions.

We find untenable the position of the appellate court ruling that defendant's petition for a writ of habeas corpus should have been treated as a motion to dismiss the prosecution. Defendant had already filed a motion to dismiss the indictment of February 15, which was denied, and, as earlier stated, the grounds raised in the petition for habeas corpus were identical. Therefore, we find that the trial court correctly treated the petition as it was presented — one for writ of habeas corpus.

Supreme Court Rule 366(a)(5) allows the appellate court to make any order that ought to have been given and to make any further orders that the case may require. The appellate court reasoned that it had the power under this rule to determine the legal effect of a dismissal "with prejudice." However, the rule assumes that the court properly has jurisdiction over the case before it. Our rules also provide that the only jurisdictional requirement in the perfection of an appeal is the filing of a notice of appeal. (73 Ill.2d R. 606.) This court has unequivocally stated that the filing of a notice of appeal is "essential to confer jurisdiction upon the reviewing court." (People v. Stueve (1977), 66 Ill.2d 174, 178.) There is, in this record, no notice of appeal ...

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