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10/05/87 the People of the State of v. Kenneth Totten

October 5, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE

v.

KENNETH TOTTEN, APPELLANT. -- THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,

v.

MAX C. GARTNER, APPELLEE



SUPREME COURT OF ILLINOIS

514 N.E.2d 959, 118 Ill. 2d 124, 113 Ill. Dec. 47 1987.IL.1501

No. 63520. -- Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Du Page County, the Hon. Edward W. Kowal, Judge, presiding. No. 63531. -- Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Ogle County, the Hon. F. Lawrence Lenz, Judge, presiding.

APPELLATE Judges:

JUSTICE MORAN delivered the opinion of the court. JUSTICE CUNNINGHAM took no part in the consideration or decision of this case.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MORAN

In cause No. 63520, the defendant, Kenneth Totten, was summarily found in direct criminal contempt and sentenced to six months' imprisonment for striking the assistant State's Attorney at his sentencing hearing following his conviction on charges unrelated to this appeal. Five days later, a Du Page County grand jury indicted defendant, charging him with four counts of aggravated battery. The circuit court granted defendant's motion to dismiss the indictment on the basis of double jeopardy, and the State appealed. The appellate court reversed and remanded (143 Ill. App. 3d 132), and this court allowed defendant's petition for leave to appeal pursuant to Rule 315 (107 Ill. 2d R. 315).

In cause No. 63531, the defendant, Max C. Gartner, was charged by information in Ogle County with aggravated battery for striking and kicking his wife, Linda Gartner, in the face. Thereafter, the circuit court of Winnebago County found that defendant had violated the order of protection it had previously entered in defendant's pending action for dissolution of marriage, adJudged him in contempt and sentenced him to 30 days in the Winnebago County jail. Defendant subsequently moved to dismiss the Ogle County information on the basis of double jeopardy. The circuit court dismissed the information, and the State appealed. The appellate court affirmed, relying on this court's decision in People v. Gray (1977), 69 Ill. 2d 44, cert. denied (1978), 435 U.S. 1013, 56 L. Ed. 2d 395, 98 S. Ct. 1887. (143 Ill. App. 3d 113.) We allowed the State's petition for leave to appeal under Rule 315 (107 Ill. 2d R. 315). Since each case involves a similar issue, they have been consolidated for Disposition.

The issue to be resolved is whether the protection against double jeopardy precludes a criminal prosecution for aggravated battery based upon the same conduct for which the defendant has been previously adJudged in criminal contempt. We are also asked to consider whether this court's holding in People v. Gray (1977), 69 Ill. 2d 44, cert. denied (1978), 435 U.S. 1013, 56 L. Ed. 2d 395, 98 S. Ct. 1887, should be overruled.

In cause No. 63520, the defendant was found guilty of rape, deviate sexual assault, home invasion, armed robbery, aggravated kidnaping and aggravated battery following a bench trial before Judge Charles R. Norgle in the circuit court of Du Page County. On March 22, 1984, Judge Norgle sentenced defendant to 60 years' imprisonment.

The record indicates that after the Judge imposed sentence, he stated:

"Let the record show that after the Court imposed the sentence, the defendant struck the prosecutor in the face with his fist, and the Court observed the act, and the defendant is sentenced to six months for the offense of direct contempt of Court in addition to the 60 year sentence imposed by the Court.

Sixty years plus six months. That's all."

Thereafter, on March 27, 1984, the grand jury returned an indictment charging defendant with four counts of aggravated battery. Counts I and II of the indictment alleged that while Assistant State's Attorney Mary

Defendant moved to dismiss the indictment on double jeopardy grounds. He argued that a prosecution for aggravated battery following, and arising out of, an adjudication of direct criminal contempt would violate the double jeopardy clauses of both the United States and Illinois Constitutions. (U.S. Const., amend. V; Ill. Const. 1970, art. I, sec. 10.) The circuit court, concluding that this court's decision in People v. Gray (1977), 69 Ill. 2d 44, cert. denied (1978), 435 U.S. 1013, 56 L. Ed. 2d 395, 98 S. Ct. 1887, was dispositive, ruled that it had no recourse but to dismiss the indictment, and the State appealed. The appellate court reversed, concluding that: "[s]ince this case was concerned with a non-adversarial summary contempt proceeding, no ...


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