Appeal from the Circuit Court of Ogle County; the Hon.
Lawrence Lenz, Judge, presiding.
JUSTICE SCHNAKE DELIVERED THE OPINION OF THE COURT:
The State appeals from an order of the circuit court of Ogle County dismissing charges of aggravated battery against defendant, Max C. Gartner, on the grounds of double jeopardy, and challenges the trial court's judgment as erroneous.
Defendant was charged by an information filed on January 3, 1984, with aggravated battery by intentionally causing great bodily harm in violation of section 12-4(a) (Ill. Rev. Stat. 1983, ch. 38, par. 12-4(a)). At defendant's initial appearance in court on January 6, 1984, bond was set at $75,000. The requisite 10% cash deposit was posted the same day.
Defendant was represented by counsel at proceedings held on January 17, 1984. At that time defendant waived his right to a preliminary hearing and entered a plea of not guilty. The court continued the condition of defendant's bond that prohibited any direct or indirect contact or communication with the victim.
On February 16, 1984, defendant filed a motion to dismiss the information. It alleged that the information was insufficient and also that it was barred by reason of a finding in Winnebago County that defendant had violated an order of protection entered pursuant to the Illinois Domestic Violence Act (Ill. Rev. Stat. 1981, ch. 40, par. 2301-1 et seq.) in a pending dissolution case.
Proceedings on the motion to dismiss were conducted on February 16, 1984. In support of the motion, defense counsel stated that the defendant had been found in violation of an order of protection in Winnebago County on January 13, 1984, based on the same facts at issue in the Ogle County aggravated battery information. In support of this position defendant cited the case of People v. Gray (1977), 69 Ill.2d 44, cert. denied (1978), 435 U.S. 1013, 56 L.Ed.2d 395, 98 S.Ct. 1887. Continued proceedings were conducted on February 21, 1984. Defense counsel waived further argument, subject to rebuttal, and the prosecutor stipulated to the facts as related above. Citing Illinois v. Vitale (1980), 447 U.S. 410, 65 L.Ed.2d 228, 100 S.Ct. 2260, the State argued that the prior contempt proceedings and the aggravated battery prosecution involved different elements. In rebuttal, the defense reasserted its reliance on People v. Gray (1977), 69 Ill.2d 44, and noted that the Ogle County authorities had been aware of the proceedings in Winnebago County.
An order granting the motion to dismiss on double jeopardy grounds was entered April 10, 1984. On April 26, 1984, the State moved to have the court determine whether defendant was indigent and required counsel for purposes of appeal. Notice of appeal was filed on May 7, 1984.
• 1 To be noted initially is that no appellee's brief was submitted with this appeal. The record indicates that defendant requested appointment of counsel, but after he had filed an affidavit of assets and liabilities, the court found him not to be indigent, and his request for appointed counsel was denied. Since this court has not been notified of representation by private counsel, it must be assumed that defendant is not represented on appeal. Nevertheless, pursuant to First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill.2d 128, we entertain this appeal.
The central question is whether the United States Supreme Court decision in Illinois v. Vitale (1980), 447 U.S. 410, 65 L.Ed.2d 228, 100 S.Ct. 2260, requires a reversal of the trial court's order finding defendant's prosecution for aggravated assault barred by the constitutional protections against multiple jeopardy. The State acknowledges that the case of People v. Gray (1977), 69 Ill.2d 44, cert. denied (1978), 435 U.S. 1013, 56 L.Ed.2d 395, 98 S.Ct. 1887, relied upon by defendant is substantially indistinguishable from the present case, but it argues that the Gray holding has been implicitly overruled by the Vitale decision.
In Gray defendant was indicted for aggravated battery and attempted murder for striking and shooting his wife. However, defendant had previously been tried, found in contempt of court and punished for violation of a protective order in a divorce proceeding, based on the same conduct. The majority of the Gray court held that the aggravated battery conviction violated the constitutional protection against multiple jeopardy.
In Gray, the court stated that the pivotal question was whether the offenses of criminal contempt and aggravated battery constituted the same offense for purposes of double jeopardy. To make this determination the court defined the appropriate test as: "Would the same evidence sustain the proof of each offense?" (People v. Gray (1977), 69 Ill.2d 44, 49.) The Gray court relied on the United States Supreme Court's reasoning in Brown v. Ohio (1977), 432 U.S. 161, 53 L.Ed.2d 187, 97 S.Ct. 2221, which in turn reiterated the test as stated in Blockburger v. United States (1932), 284 U.S. 299, 304, 76 L.Ed. 306, 309, 52 S.Ct. 180, 182:
"The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. * * *"
The Brown court went on to state:
"This test emphasizes the elements of the two crimes. `If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes. * * *' Iannelli v. United States, 420 ...