Before reaching the merits of the double jeopardy issue, we must first dispose of the State's contention that the defendant was never put in jeopardy on the DUI charge because the State had entered a nolle prosequi to that charge after the defendant's plea and before sentence had been imposed. It is the State's position that in view of this set of facts, no judgment of conviction has been entered and no jeopardy attached.
SUPREME COURT OF ILLINOIS
514 N.E.2d 983, 118 Ill. 2d 179, 113 Ill. Dec. 71 1987.IL.1497
Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of Kankakee County, the Hon. Wayne P. Dyer, Judge, presiding.
JUSTICE RYAN delivered the opinion of the court. JUSTICE CUNNINGHAM took no part in the consideration or or decision of this case.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RYAN
We granted the State leave to appeal from a decision of the appellate court (144 Ill. App. 3d 131), which affirmed a ruling by the circuit court of Kankakee County granting defendant Albert Jackson's motion to dismiss one of two reckless homicide counts on grounds of double jeopardy.
Albert L. Jackson, the defendant, and Frederick Fisher were in a motor vehicle operated by Jackson on November 12, 1982. The vehicle struck a tree, and Fisher was killed. The defendant, Jackson, was issued uniform traffic complaint citations for driving under the influence (Ill. Rev. Stat. 1981, ch. 95 1/2, par. 11-501) and illegal transportation of alcohol (Ill. Rev. Stat. 1981, ch. 95 1/2, par. 11-502).
The defendant was held in jail until the following Monday, November 15, 1982, when he was scheduled to appear before a circuit court Judge. At this appearance the defendant, who was unrepresented by counsel, pleaded guilty to the charges. He was admonished by the Judge as to his guilty pleas. The Judge accepted the pleas and set a sentencing date for December 28, 1982. On December 8, 1982, however, in the defendant's absence and without notice to the defendant, the State moved to enter a nolle prosequi to both charges, which motion was granted. On December 20, 1982, the defendant was indicted on two counts of reckless homicide. Count I alleged that by recklessly swerving, the defendant caused his car to strike a tree, thereby causing the death of the passenger, Frederick Fisher. Count II alleged that defendant's reckless act was driving under the influence, which caused him to swerve, strike a tree and cause his passenger's death.
Defendant's motion to dismiss count II on double jeopardy grounds was granted. The court also ruled that evidence of driving under the influence and illegal transportation of alcohol could not be used as to count I. The appellate court affirmed these rulings and, as noted, we granted the State leave to appeal.
According to one commentator, there has been apparent confusion in this court concerning our double jeopardy analysis, as evidenced by our holdings in People v. Mueller (1985), 109 Ill. 2d 378, People v. Zegart (1980), 83 Ill. 2d 440, In re Vitale (1978), 71 Ill. 2d 229, and People v. Gray (1977), 69 Ill. 2d 44. See Eisenberg, Multiple Punishments for the "Same Offense" in Illinois, 11 S. Ill. U. L.J. 217 (1987).
To a degree, what the author of the above article sees as confusion can be attributed to some language of the Supreme Court in Illinois v. Vitale (1980), 447 U.S. 410, 65 L. Ed. 2d 228, 100 S. Ct. 2260, which appears to be inconsistent with, or at least to qualify, the holding of that case. Vitale reaffirmed the Supreme Court's holding in Blockburger v. United States (1932), 284 U.S. 299, 76 L. Ed. 306, 52 S. Ct. 180, that the double jeopardy test focuses on the proof necessary to prove the elements of the offense, rather than on the actual evidence presented at trial. The Supreme Court, in Vitale, seemed to qualify that test by stating:
"f in the pending manslaughter prosecution Illinois relies on and proves a failure to slow to avoid an accident as the reckless act necessary to prove manslaughter, Vitale would have a substantial claim of double jeopardy . . .." Illinois v. Vitale (1980), 447 U.S. 410, 421, 65 L. Ed. 2d 228, 238, 100 S. Ct. 2260, 2267.
This court relied on this language in People v. Zegart (1980), 83 Ill. 2d 440, 443, in holding a prosecution for reckless homicide barred because the State conceded that in proving reckless homicide it would rely on the fact that the defendant had driven across the median strip, which had been the basis of his earlier traffic conviction. It is apparent that the dicta of Vitale quoted above and relied on by this court in Zegart, carries little weight with the Supreme Court since it has not been cited by that court in subsequent decisions, and is not consistent with the court's decisions either before or after Vitale. (See Eisenberg, Multiple Punishments for the "Same Offense" in Illinois, 11 S. Ill. U. L.J. 217, 247 (1987).) In Thigpen v. Roberts (1984), 468 U.S. 27, 82 L. Ed. 2d 23, 104 S. Ct. 2916, the Supreme Court had granted certiorari to consider a holding of the Court of Appeals for the Fifth Circuit, which relied on the dicta of Illinois v. Vitale, as this court did in Zegart. The Court of Appeals had affirmed a reversal of a conviction on double jeopardy grounds because "proof of manslaughter required proof of all of the elements of reckless driving, of which [the defendant] had already been convicted." (Thigpen v. Roberts (1984), 468 U.S. 27, 29, 82 L. Ed. 2d 23, 28, 104 S. Ct. 2916, 2918.) The Supreme Court avoided the double jeopardy issue by affirming the reversal of ...