APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
514 N.E.2d 1033, 162 Ill. App. 3d 149, 113 Ill. Dec. 121 1987.IL.1574
Appeal from the Circuit Court of Kane County; the Hon. John L. Nickels, Judge, presiding.
JUSTICE NASH delivered the opinion of the court. LINDBERG, P.J., and INGLIS, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE NASH
The State appeals from an order of the circuit court dismissing charges of child abduction (Ill. Rev. Stat. 1985, ch. 38, par. 10-5(b)(1)), residential burglary (Ill. Rev. Stat. 1985, ch. 38, par. 19-3), and battery (Ill. Rev. Stat. 1985, ch. 38, par. 12-3(a)(1)) against defendant, Rolando Rodriguez, on double jeopardy grounds. The court found that defendant had previously been held in original contempt of court for the same conduct that resulted in the dismissed charges. The State contends on appeal that the contempt determination does not bar prosecution for the criminal charges.
On September 4, 1987, we filed an opinion affirming the trial court's dismissal of criminal charges against defendant, and the State filed a petition for rehearing. While the State's petition was pending, the Illinois Supreme Court rendered its opinion in People v. Totten (1987), 118 Ill. 2d. 124, which we find to be dispositive of the issues in this case, and we vacate our original opinion.
Nadine Rodriguez filed a petition for dissolution of marriage and for a domestic violence order of protection against defendant on May 6, 1985. After hearings, the court awarded temporary custody of their minor child to Nadine, subject to visitation by defendant. The court also enjoined defendant from entering Nadine's residence and enjoined both of the parties from removing their child from the State and from striking, harassing, or interfering with the personal liberties of the other spouse.
On June 27, 1985, defendant was arrested for committing battery against Nadine, who stated that he entered her residence, struck her, and abducted their child. On that date, the Judge presiding in the family court division of the circuit court heard Nadine's emergency motion for return of the minor child, a petition for rule to show cause, and a petition for a domestic violence order of protection. At the hearing, the Judge asked defendant where the child was, to which defendant answered he did not know. The Judge stated:
"It is my opinion that you have the knowledge of the location of the child. There will be a finding of contempt. The only way you can purge yourself of contempt is to arrange for the return of the child. It will be my order."
In its written order, the court found defendant in contempt for failing to comply with the custody order and committed defendant to the county jail until he had purged the contempt by returning the child.
On June 28, 1985, the child was returned to Nadine, and a hearing in relation to the emergency motion was held at which no court reporter was present. The trial court entered a written order in which it found that defendant previously had been held in contempt, and having purged himself of civil contempt, it was ordered:
"(1) Mittimus previously issued for direct civil contempt (order of 6/27/85) be and is hereby quashed instanter, and defendant be and is hereby ordered released subject to paragraph three below.
(2) That the defendant is in indirect criminal contempt and sentenced to 60 days KCCC [Kane County Correctional Center], mittimus ...