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05/04/87 the People of the State of v. James Thomas Pender

May 4, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT

v.

JAMES THOMAS PENDER, JR., DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

507 N.E.2d 951, 154 Ill. App. 3d 978, 107 Ill. Dec. 798 1987.IL.582

Appeal from the Circuit Court of Macon County; the Hon. John L. Davis, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE SPITZ delivered the opinion of the court. GREEN and LUND, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SPITZ

Defendant, James Thomas Pender, Jr., was charged by information in the circuit court of Macon County with driving while license revoked with a prior driving while license revoked conviction, in violation of section 6-303(d) of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 6-303(d)). A jury trial was held. At the close of all the evidence, the trial Judge granted defendant's motion for a directed verdict. The State now appeals. For reasons that follow, the appeal is dismissed.

The following evidence was adduced at the June 22, 1986, jury trial in this cause. The State called one witness, Decatur city police officer Wayne Hughes. Hughes testified that on March 29, 1986, he was working second shift and at approximately 7:30 p.m. he was in the 200 block of East Leafland in Decatur. Hughes was driving west on Leafland when he saw defendant driving a car and saw his car turn on Water Street to proceed east. Although it was dark at 7:30 p.m., the headlights of Hughes' car hit defendant's car, and Hughes was able to observe and recognize the driver as defendant. Additionally, there were streetlights and other traffic in the area. Defendant was the only person in the car, and Hughes had spoken to him and seen him at other times. Hughes turned his squad car around and followed defendant because he knew "for a fact that Mr. Pender was revoked." Hughes stopped the defendant, approached his car, and requested defendant's driver's license. When defendant stated he did not have a driver's license, Hughes placed defendant under arrest for driving with license revoked.

The State offered People's exhibit No. 1, which was a certified record of defendant's prior conviction of driving with license revoked, and People's exhibit No. 2, which was a certified copy of defendant's revocation on February 16, 1973. Defendant objected to the admission of People's exhibit No. 1 as having no identification of defendant's being that same person. The State argued that the rebuttable presumption as to the accuracy of the record applied, and the court admitted exhibit No. 1. Defense counsel then objected to People's exhibit No. 2 as it did not contain a certified record of conviction in addition to the certified and sealed copy of revocation. The court noted that the certificate bears the seal of the Secretary of State on the revocation of driving privileges of the defendant and that the attached pages were supporting documents. The court then admitted People's exhibit No. 2. The court denied defendant's motion for a directed verdict at the close of the State's evidence.

Defendant then testified on his own behalf. He stated he had loaned his car that day to a friend. Defendant further testified that he received a call from Mr. Lucky's tavern that his friend had been in a fight and that the police would be called. Defendant then walked to Mr. Lucky's and picked up his car to drive it home. On cross-examination, defendant acknowledged that he knew he was not supposed to be driving at the time he was stopped.

During the jury instruction conference, counsel and the court discussed the elements of the offense that must be proved for a violation of section 6-303(d) (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 6-303(d)). Thereafter, the court examined People's exhibit No. 2 and noted that page 3 of the exhibit reflected that defendant's driver's license had been revoked for the conviction of driving under the influence of intoxicating liquor. The court then inquired "[w]here is the conviction of DUI?" The State responded that it did not have to present evidence of the prior DUI conviction, but only had to prove that the license was revoked for a prior DUI. The court disagreed, analogizing this section to a second offense of theft when the first theft must be proved. The court concluded that for a conviction under section 6-303(d) (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 6-303(d)), the State must prove four elements: (1) the DUI conviction; (2) the license revocation; (3) the first driving on revocation; and (4) the second driving on revocation. The court then ruled that since there was no proof of the driving under the influence of alcohol conviction underlying the revocation, the State had failed to prove all of the elements of the charged offense and defendant's motion for a directed verdict was allowed. The State now appeals challenging the trial court's ruling as erroneous.

As a preliminary matter, we address defendant's contention that the instant appeal is barred by the double jeopardy clause.

As just indicated, the trial court, on defendant's motion, directed a verdict in favor of the defendant at the close of all the evidence, ruling that the evidence presented had not been sufficient to convict. Contrary to the State's assertions, the directed verdict operated as an acquittal and thus is not appealable.

The constitutional protections against double jeopardy articulated by both the United States and Illinois constitutions (U.S. Const., amend. V; Ill. Const. 1970, art. I, sec. 10) safeguard a defendant against

"A judgment of acquittal, whether based on a jury verdict of not guilty or on a ruling by the court that the evidence is insufficient to convict, may not be appealed and terminates the prosecution when a second trial would be necessitated by a reversal." (United States v. ...


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