Appeal from the Circuit Court of Jo Daviess County; the Hon.
Harold D. Nagel, Judge, presiding.
JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:
This action involved an appeal by the State from an order of the circuit court of Jo Daviess County, Illinois, dismissing the State's complaint against defendant-appellee, Renee Poliak. The State asserts that the trial court erred in ruling that the theft prosecution was barred by section 3-4(c) of the Criminal Code of 1961. (Ill. Rev. Stat. 1981, ch. 38, par. 3-4(c).) Defendant responds that the trial court's order was proper because she was adjudicated delinquent in the State of Colorado for the same conduct. We affirm.
Defendant was charged by information on September 21, 1982, with the offense of theft over $300 (Ill. Rev. Stat. 1981, ch. 38, par. 16-1(a)(1)), for knowingly obtaining unauthorized control over the property of another. Defendant filed a motion for discharge on November 24, 1982, grounded on statutory and constitutional double jeopardy provisions. The basis for the motion was a petition filed on September 16, 1982, in the juvenile court of Boulder County by the State of Colorado alleging that defendant was a delinquent child because "between the dates of August 22, 1982, and September 8, 1982, in the City of Boulder, County of Boulder, State of Colorado, Renee Ann Poliak did unlawfully and knowingly obtain and exercise control over the motor vehicle of Anna Richardson without authorization and by threat of deception; contrary to C.R.S. 1973, 18-4-409 (4), as amended."
Defendant came under the jurisdiction of the juvenile court because at the time of her arrest in Colorado, she was 17 years old. The records from the State of Colorado indicate that defendant appeared with an attorney at this adjudicatory hearing and admitted the allegations in the petition. Thereafter, the Colorado court adjudicated her a delinquent. Because the facts supporting the later Illinois prosecution allegedly were identical to those supporting the delinquency adjudication in Colorado, defendant argued in her motion for discharge that the Illinois prosecution was barred based on an Illinois statute (Ill. Rev. Stat. 1981, ch. 38, par. 3-4(c)) and the double jeopardy provisions of the State and Federal constitutions.
The court held a hearing on defendant's motion at which the parties stipulated that the car was taken from Jo Daviess County, the owner of the car lived in Jo Daviess County, and two defendants were in the car when it left the county. Defendant argued the Illinois prosecution was barred on the basis of section 3-4(c) because the Colorado delinquency adjudication was a former prosecution and both actions were predicated on the same facts. In response, the State argued Colorado did not have jurisdiction over the charge of obtaining possession of the car because the car was taken in Illinois, not Colorado. The State also contended the Illinois complaint required proof of a fact not required in the Colorado action, and that certain exceptions to the applications of section 3-4 authorized prosecution of defendant in Illinois.
The trial court in its order stated that the Illinois prosecution was not barred by constitutional double jeopardy prohibitions because more than one sovereign was involved. The court also found that Colorado did have jurisdiction over the charge of exerting control and arguably had jurisdiction over the charge of obtaining control of the car because while "[t]here are no cases defining this word `obtain,'" it could be argued "that each time she parked and left the vehicle, she again `obtained control' over the vehicle when she returned to it." The trial court ruled that while defendant was charged in the Illinois prosecution with obtaining control, the crime of theft is continuing and that both "exerting" and "obtaining" constitute one offense of theft. Since the court also found that the juvenile adjudication was a "conviction" or "prosecution" within the meaning of section 3-4(c) of the Criminal Code, the court concluded the Illinois prosecution was barred by that section and dismissed the complaint. The State filed a timely notice of appeal.
• 1 The first argument advanced by the State is that section 3-4(c) does not bar the instant prosecution because the juvenile adjudication in Colorado is not the equivalent of a "former prosecution" or a "conviction" within the meaning of the statute. The State acknowledges it failed to raise this argument before the trial court, but contends this court should consider the merits of the challenge under the plain-error rule. (87 Ill.2d R. 615(a).) In its order, the trial court stated that "[n]either party raises any question as to whether the adjudication under the juvenile code of Colorado was a `conviction' or a `prosecution,' and this Court assumes that it would so qualify." While the issue was not raised by the State below, the court nevertheless in its order appears to have ruled on the issue. We address the merits of the State's argument by invoking the plain-error doctrine. 87 Ill.2d R. 615(a).
The State's argument is predicated on statutory grounds and is not based on the constitutional prohibition against double jeopardy, for that prohibition does not pertain to successive prosecutions by different governments. (Bartkus v. Illinois (1959), 359 U.S. 121, 3 L.Ed.2d 684, 79 S.Ct. 676.) The State employs the statutory construction rule that identical or similar terms appearing in different sections of the same statute should be given a consistent meaning. It contends prior judicial interpretations of other Criminal Code sections suggest that a delinquency adjudication is not a "prosecution" within the section 3-4(c). See, e.g., In re W.W. (1983), 97 Ill.2d 53 (the terms "defendant" and "conviction" in the costs statute authorizing fees for State's Attorneys indicate the statute was not intended to apply to juvenile proceedings which "are not criminal in nature"); In re S.R.H. (1983), 96 Ill.2d 138 (Criminal Code requirements relating to formal charging instruments do not apply to petitions seeking adjudication of wardship based upon delinquency); People v. Woodruff (1981), 88 Ill.2d 10 (in concluding that the speedy trial provisions of the Criminal Code of 1961 did not apply to juvenile proceedings, the court emphasized that "offense" used in section 103-5 of the Code of Criminal Procedure of 1963 relates to criminal prosecutions only); In re R.R. (1979), 75 Ill. App.3d 494, 394 N.E.2d 75, cert. denied (1980), 447 U.S. 928, 65 L.Ed.2d 1122, 100 S.Ct. 3025 (a minor is not entitled in a delinquency proceeding to "post-conviction" relief, citing the differences between a criminal trial and a juvenile proceeding).
The State also cites language in McKeiver v. Pennsylvania (1971), 403 U.S. 528, 541, 29 L.Ed.2d 647, 658, 91 S.Ct. 1976, 1984, that "the juvenile court proceeding has not yet been held to be a `criminal prosecution.'" The court in McKeiver held a minor is not entitled as a matter of right to a jury trial in the adjudicative phase of a State juvenile court delinquency proceeding. In response, defendant cites Breed v. Jones (1975), 421 U.S. 519, 44 L.Ed.2d 346, 95 S.Ct. 1779, where the court held that the double jeopardy provision of the fifth amendment prevented adult prosecution of a defendant for the same offense on which he had previously been adjudicated a delinquent. As the Breed court said, "in terms of potential consequences, there is little to distinguish an adjudicatory hearing such as was held in this case from a traditional criminal prosecution." 421 U.S. 519, 530, 44 L.Ed.2d 346, 356, 95 S.Ct. 1779, 1786.
None of the preceding cases has construed the specific statute which is the subject of this appeal. Defendant, however, cites two cases which she asserts have recognized the applicability of section 3-4 to juvenile proceedings. In In re McGovern (1978), 62 Ill. App.3d 1049, 379 N.E.2d 937, this court held that the State could not appeal a finding in a delinquency action that the minor was not delinquent. Noting that Supreme Court Rule 604(a)(1) stated that appeals of final judgments in delinquency proceedings were governed by the rules applicable in criminal cases, this court concluded the State could not appeal the trial court's ruling because of double jeopardy principles. In so concluding, this court stated that "[i]t is well-settled that after trial on the merits in a criminal case there shall be no appeal from a judgment of acquittal. (Ill. Const. 1970, art. VI, sec. 6; Ill. Rev. Stat. 1975, ch. 38, par. 3-4(1).)" (62 Ill. App.3d 1049, 1052, 379 N.E.2d 937, 940.) While this court cited section 3-4, it based its decision principally on the fact that allowing the State to appeal would violate the constitutional prohibition against double jeopardy. Therefore, McGovern does not explicitly find that section 3-4 is applicable to juvenile adjudicatory proceedings.
Defendant's reliance upon In re R.L.K (1978), 67 Ill. App.3d 451, 384 N.E.2d 531, is more apposite. In R.L.K., the court held that the concepts of double jeopardy and compulsory joinder are applicable to MINS (minor in need of supervision) proceedings. The State in R.L.K. initially filed MINS petitions because of the minor's involvement in a theft. After the State rested its case at the hearing, the court granted a motion for a directed verdict in favor of the minors. Rather than appeal this order, the State filed petitions for adjudication of wardship alleging the minors were delinquents. After the State concluded its portion of the case, the trial court granted the minors' motion to dismiss the petition in part because the second proceeding was barred by double jeopardy. The appellate court affirmed, finding that "both statutory and constitutional double jeopardy provisions mandate that the State was barred from alleging the theft violation in the second petition." 67 Ill. App.3d 451, 454, 384 N.E.2d 531, 533.
While acknowledging that the R.L.K. court concluded that section 3-4 was applicable to delinquency proceedings, the State questions whether the result is correct. The precise holding in R.L.K. is that the concepts of double jeopardy and compulsory joinder as expressed in the Criminal Code of 1961 do apply to MINS proceedings. The R.L.K. court did not expressly hold that those same statutory provisions applied to delinquency adjudications, although a fair reading of the opinion indicates that the provisions do apply. The reason the R.L.K court did not expressly reach the question posed by this appeal is that in R.L.K., the State conceded that section 3-4 was applicable to delinquency proceedings. Given this concession, the court proceeded to analyze whether MINS proceedings were sufficiently similar to delinquency proceedings to warrant application of the statutory prohibition against double jeopardy to MINS proceedings.
"[B]ecause the potential consequences of a MINS and a delinquency determination are substantially similar - including the stigma associated with both proceedings - the protection afforded delinquents by the compulsory adjoinder [sic] in double jeopardy provisions of the Criminal Code should be applied to MINS children." 67 Ill. App.3d 451, 456, 384 N.E.2d 531, 534-35.
• 2 As additional support for its holding, the R.L.K. court construed In re Vitale (1978), 71 Ill.2d 229, vac. & rem. on other grounds (1980), 447 U.S. 410, 65 L.Ed.2d 228, 100 S.Ct. 2260, as holding that section 3-3 and 3-4 applied to delinquency proceedings. (In re R.L.K. (1978), 67 Ill. App.3d 451, 454, 384 N.E.2d 531, 534.) However, as the Fourth District of our appellate court later acknowledged in ...