Appeal from the Circuit Court of Adams County; the Hon. Fred
W. Reither, Judge, presiding.
JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 30, 1983.
The prosecution appeals from the "Order dismissing Counts alleging Aggravated Battery and Armed Violence preventing a retrial on said counts following a mistrial."
The trial court's memorandum framed the issue in the language:
"Does a verdict, judgment and sentence of a lesser included offense (reckless conduct) bar a retrial on the charges of aggravated battery and armed violence where the charges arose from a single act or course of conduct and a jury has been unable to reach a verdict on the charges of aggravated battery and armed violence?"
In bare summary of the evidence, defendant was stopped by a police officer late at night but no arrest was made. Defendant then followed the officer to the latter's home and fired two pistol shots, one of which struck the officer in the arm. Charges under the Criminal Code of 1961 relevant to this appeal included one count for attempted murder, three counts of aggravated battery, one count of armed violence and one count of unlawful use of firearms. Ill. Rev. Stat. 1979, ch. 38, pars. 8-4, 12-4, 33A-2, 24-1.
The jury was instructed in the language and frame of Illinois Pattern Jury Instruction, Criminal Nos. 2.01, 11.13, 11.14 (2d ed. 1981) (hereinafter cited as IPI Criminal) upon the following: (1) reckless conduct is an included offense upon the charges heard (No. 2.01), (2) "reckless" was defined (No. 11.13) and the issues in the offense of reckless conduct were stated (No. 11.14).
There was also an Illinois Pattern Jury Instruction in the language of No. 26.01 (IPI Criminal No. 26.01):
"The defendant is charged with the offenses of attempt murder, aggravated battery, armed violence, reckless conduct and unlawful use of weapons. As to the offenses of aggravated battery there are three counts charged. You will receive 15 forms of verdict. As to each charge you will be provided with the `not guilty,' `guilty,' and `not guilty by reason of insanity' form of verdict."
An entry signed by the trial judge noted that during the deliberations certain written questions were submitted by the jury to the court and made a part of the court file. The entry continues:
"Jury returns into open court with verdict of not guilty of attempt murder, guilty of unlawful use of weapons, and guilty of reckless conduct. No verdicts are returned on offenses of armed violence and aggravated battery due to inability of jury to agree on a verdict on said charges.
The court enters judgment on verdicts of attempt murder and unlawful use of weapons. Court reserves ruling as to entry of judgment on verdict as to offense of reckless conduct. Court tentatively declares mistrial as to offense of armed violence and aggravated battery and discharges jury thereon. Defendant's movement for acquittal on aggravated battery and armed violence based on reckless [conduct] verdict denied."
The record discloses that the trial court did not thereafter enter any mistrial upon the charges of aggravated battery and armed violence on which the jury could not agree, but disposed of the matters with the following procedure: Defendant filed a motion to dismiss the charges of aggravated battery and armed violence, urging that double jeopardy had attached upon the return of the verdict of guilty upon the charge of reckless conduct. In colloquy during argument, the trial court stated that he found no reason why the court should not enter judgment on that verdict of guilty and that he did so without "deciding any ramifications as to double jeopardy."
The prosecution thereafter filed a motion to set the charges of aggravated battery and armed violence for trial. Briefs were filed and argument heard. Thereafter, the trial court filed its memorandum opinion and entered orders which denied the motion to set the charges for trial, and granted defendant's motion for discharge upon the several charges of aggravated battery and armed violence.
The rationale of the trial court appears to be stated as follows:
"Since all the charges in this case arose from a single act or course of conduct, it is clear that the conviction of reckless conduct could not stand if defendant were convicted of either aggravated battery or armed violence. Since the defendant has already been convicted of and sentenced on the charge of reckless conduct, there is no way the conviction of reckless conduct could be ...