Appeal from the United States District Court for the Southern District of Illinois, East St. Louis Division. No. 81 C 3135 -- Gerald B. Cohn, Magistrate.
Cummings, Chief Judge, Eschbach, and Flaum, Circuit Judges.
This appeal from the denial of petitioner Woollums' application for a writ of habeas corpus raises the issue whether Woollums' prosecution on an aggravated battery charge was barred by the Double Jeopard Clause of the Fifth Amendment to the United States Constitution. We conclude that it was and therefore reverse the magistrate's judgment.
On September 4, 1973, a Quincy attorney found Woollums, apparently intoxicated at the time, tampering with his automobile. The attorney returned to his office and solicited the help of several Quincy police officers. They returned to the scene and found Woollums. When questioned about his actions, Woollums falsely stated his brother-in-law owned the automobile. Upon being informed by the officer that the owner was standing beside him, Woollums struck the officer behind the ear. He then fled with the officer in hot pursuit; he stumbled and fell, and in the ensuing scuffle, kicked the officer.
On September 4, 1973, Woollums was issued a citation for violations of local ordinances prohibiting intoxication and interfering with an officer. The charges were made out on a Uniform Illinois Citation and Complaint Form. The box requiring a mandatory court appearance under Illinois Supreme Court Rule 551(f) was checked. Woollums did not sign the portion of the form waiving trial and consenting to the entry of an ex parte judgment as provided for in Rule 556(b).
On September 5, 1973, Woollums appeaared in court and posted $100 cash bail; trial was set for September 26, 1973. When Woollums failed to appear in court on September 26, the following order was entered:
Defendant called three times, fails to appear and is found to be in default. Ex parte judgment is entered herein against the Defendant in the amount of $100.00. It is therefore ordered that the Defendant's cash bond heretofore posted by Defendant shall be applied in satisfaction of the judgment rendered herein.*fn1
On April 2, 1975, Woollums was indicted on a charge of aggravated battery based upon the events of September 4, 1973. Following a jury trial held in November, 1977, he was found guilty; on December 10, 1977, he was sentenced to a prison term of three and one-third years to ten years. Woollums' conviction and sentence were affirmed, People v. Woollums, 63 Ill. App. 3d 602, 379 N.E.2d 1385, 20 Ill. Dec. 317 (1978), and the Illinois Supreme Court denied leave to appeal. Woollums' amended petition for post-conviction relief was dismissed on August 13, 1979.
In his petition for a writ of habeas corpus, Woollums raised two claims which had been decided adversely to him by the Illinois Appellate Court: (1) his prosecution for and conviction of aggravated battery following the ex parte judgment on the ordinance violation of interfering with an officer violated the Double Jeopardy Clause of the United States Constitution; and (2) the delay of eighteen months between the September 4, 1973 incident and the April 2, 1975 indictment violated his due process rights.
The parties consented to entry of final judgment by a United State Magistrate pursuant to 28 U.S.C. § 636(c). Following an evidentiary hearing and by order dated August 14, 1981, Magistrate Cohn dismissed Woollums' due process claim.*fn2 By order dated October 28, 1982, Magistrate Cohn denied the petition in its entirety, concluding that Woollums' double jeopardy claim similarly lacked merit. The magistrate held there were no "multiple punishments" in Woollums' case: the forfeiture of the bail did not constitute criminal punishment. The magistrate further rejected Woollums' argument that interfering with an officer is a lesser included offense of aggravated battery. The magistrate reasoned that the ordinance requires proof that the person interfered with was a city officer or employee; the statute does not. Woollums appeals.
The Fifth Amendment guarantee against double jeopardy, enforceable against the states through the Fourteenth Amendment, Benton v. Maryland, 395 U.S. 784, 23 L. Ed. 2d 707, 89 S. Ct. 2056 (1969), ...