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People v. Dilger





Appeal from the Circuit Court of Du Page County; the Hon. Carl F.J. Henninger, Judge, presiding.


Rehearing denied July 24, 1984.

The State appeals from the purported acquittal by the circuit court of defendant, Christopher Dilger, of the offense of theft of labor or services or use of property. (Ill. Rev. Stat. 1981, ch. 38, par. 16-3(b).) It contends the trial court's finding of not guilty constituted an improper dismissal of the charge against defendant.

The primary issue we consider is whether the trial court was authorized to enter a judgment of not guilty on behalf of defendant premised upon the factual basis for his plea of guilty offered by the State's Attorney pursuant to Supreme Court Rule 402(c) (87 Ill.2d R. 402(c)).

A jury trial of the charge against defendant in the information was scheduled for the afternoon of January 24, 1983. On the morning of that day the assistant State's Attorney, defendant's counsel and defendant appeared before the trial court and stated they wished to tender to it a tentative plea agreement. The terms of the agreement were that the offense would be reduced from the Class 4 felony charged to a Class A misdemeanor and the State would recommend a sentence of one year supervision, a fine of $500 and an order for restitution of $1,600 to Hertz Rent-a-Car.

As the factual basis for the plea, the assistant State's Attorney represented that on July 17, 1982, defendant rented a Lincoln Continental automobile from the Hertz Corporation in Itasca, Illinois. The contract provided the car was to be returned on July 19, 1982, and when it was not returned, Hertz sent a written notice to defendant demanding return of the vehicle. After waiting seven days, the car had still not been returned and Hertz notified the police it was missing and the criminal charge was placed against defendant. Defendant turned himself in to the police and stated he had rented the car, used it for one day and then loaned it to a Carol Lawson, telling her to return it on July 19. She failed to do so, and defendant stated he did not know how to get in touch with her. On September 11, the car was recovered from Lawson after having been driven an additional 4,000 miles. The following colloquy then took place:

"THE COURT: I reject the agreement. As far as I am concerned, that statement of facts does not show any wilful violation of any criminal statute. Those are the facts and he is not guilty of anything.

MS. WILSON [Assistant State's Attorney]: Your Honor, it is the People's position that his lending a car to a person that he does not know or barely knows, does not know how to get in touch with and doesn't have the addre's [sic] for —

THE COURT: Certainly there is a civil claim for Hertz against this person for whatever damages he might have caused, but it does not constitute a criminal violation.

MR. McCOY [Defendant's counsel]: I move to strike the complaint, then.

THE COURT: Well, no, we will have to have a trial. I can't strike anything. Let me take a look at the complaint.

It says he wilfully failed to return the vehicle within that period of time, but the statement of facts is contrary to that. The statement says he gave it to somebody else and that person didn't return it and I don't know how that could sustain a charge of willfulness. As I say, it doesn't state a criminal offense the way you told it to me just now. I find the Defendant not guilty and he is discharged."

The State contends that as a trial did not take place and defendant was never placed in jeopardy, the court was not authorized to find him not guilty. Defendant asserts that as he was in court for the purpose of entering a plea of guilty and stipulated to the prosecutor's facts, he was in danger of being found guilty and sentenced. Thus, he argues, he was placed in jeopardy and the trial court had the power under Supreme Court Rule 402(c) (87 Ill.2d R. 402(c)), which requires the trial court to determine the factual basis for a guilty plea, to enter a finding of not guilty. Defendant also argues that the judgment of not guilty is res judicata and principles of double jeopardy bar further prosecution.

• 1 It is fundamental that after a trial on the merits in a criminal case the State may not appeal from a judgment of acquittal. (Ill. Const. 1970, art. VI, sec. 6; People v. Van Cleve (1982), 89 Ill.2d 298, 307, 432 N.E.2d 837; People v. Verstat (1983), 112 Ill. App.3d 90, 96, 444 N.E.2d 1374.) An acquittal occurs when the trier of fact renders a finding of not guilty based upon evidence before it (People v. King (1974), 17 Ill. App.3d 1064, 1066-67, 309 N.E.2d 598); however, the word "acquittal" has no talismanic quality, as the substance of what was done controls, not how it was labeled. (Serfass v. United States (1975), 420 U.S. 377, 392, 43 L.Ed.2d 265, 276-77, 95 S.Ct. 1055, 1064-65; People v. Deems (1980), 81 Ill.2d 384, 388, 410 N.E.2d 8, cert. denied (1981), 450 U.S. 925, 67 L.Ed.2d 355, 101 S.Ct. 1378.) A trial court's designation of its judgment as an acquittal or dismissal is not determinative of the judgment's nature or appealability. United States v. Scott (1978), 437 ...

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