Appeal from the Appellate Court for the Third District; heard
in that court on appeal from the Circuit Court of Kankakee
County, the Hon. John F. Michela, Judge, presiding.
JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:
On December 17, 1979, the defendant, Dennis Holloway, was charged with the alleged burglary on December 9, 1979, of a building in the care, custody and control of Charles June, in his capacity as director of the Kankakee County Housing Authority. At a bench trial in the circuit court of Kankakee County the defendant was convicted and sentenced to a term of five years' imprisonment.
Charles June testified that the building the defendant was accused of burglarizing at 380 North Wildwood in Kankakee was divided into two portions: a day-care center in the front and a maintenance shop in the back. Mr. June indicated that the Kankakee County Housing Authority had no responsibility for the day-care center which was the part of the building burglarized. Although the housing authority owned the building, the back portion was leased to the Kankakee Community Action Program.
The defendant appealed the conviction and the appellate court reversed. The court held that the Kankakee County Housing Authority had no possessory interest in the burglarized portion of the building. (90 Ill. App.3d 1098.) The State did not appeal that reversal of the conviction by the appellate court. Since that judgment is not before us, we are not in a position to consider the merits of that opinion. We do, however, feel it necessary to point out that since the time of that judgment we have issued our opinion in People v. Rothermel (1982), 88 Ill.2d 541, in which we held that a daughter's possession of a key to her mother's house was sufficient to demonstrate an interest greater than that of the defendant and was therefore an adequate allegation of a possessory interest in an indictment for burglary.
The defendant in the case at bar was subsequently reindicted on March 23, 1981. The indictment alleged that he entered, without authority, the building in the care, custody, and control of Arementa Ervin in her capacity as supervisor of the Head Start Day Care Center, with the intent to commit a theft. The defendant moved to dismiss the indictment, and the trial court granted the dismissal.
In a Rule 23 order (73 Ill.2d R. 23), the appellate court affirmed the dismissal of the indictment by the trial court, holding that section 3-4(b)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 3-4(b)(1)) barred prosecution because the defendant was previously prosecuted for the same offense based on different facts; the prior proceeding resulted in a conviction, and the subsequent prosecution was for an offense with which the defendant should have been charged on the former prosecution. (101 Ill. App.3d 1200.) We granted the People's petition for leave to appeal, and we now reverse.
Section 3-4(b)(1) provides in pertinent part:
"(b) A prosecution is barred if the defendant was formerly prosecuted for a different offense, or for the same offense based upon different facts, if such former prosecution:
(1) Resulted in either a conviction or an acquittal, and the subsequent prosecution is for an offense of which the defendant could have been convicted on the former prosecution; or was for an offense with which the defendant should have been charged on the former prosecution, as provided in Section 3-3 of this Code (unless the court ordered a separate trial of such charge); or was for an offense which involves the same conduct, unless each prosecution requires proof of a fact not required on the other prosecution, or the offense was not consummated when the former trial began." Ill. Rev. Stat. 1979, ch. 38, par. 3-4(b)(1).
To determine whether the subsequent prosecution was proper or the charge is one that should have been brought on the prior prosecution, we look to the provisions of section 3-3 of the Criminal Code of 1961. It provides:
"Sec. 3-3. Multiple Prosecutions for Same Act.
(a) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense.
(b) If the several offenses are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution, except as provided in Subsection (c), if they are based on the same act." Ill. Rev. Stat. 1979, ch. 38, par. 3-3.
The defendant contends that section 3-4(b)(1) bars prosecution on the offense of the alleged burglary of premises within the custody of Arementa Ervin because the defendant should have been charged with this offense when the former prosecution was brought. Read in conjunction with section 3-4(b)(1), section 3-3(b) indicates that if several offenses are known to exist based upon the same act, then they must be prosecuted in a single prosecution unless the court in ...