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05/25/88 the People of the State of v. Charles H. Lucas

May 25, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT

v.

CHARLES H. LUCAS, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

524 N.E.2d 246, 170 Ill. App. 3d 164, 120 Ill. Dec. 481 1988.IL.821

Appeal from the Circuit Court of Putnam County; the Hon. James M. Bumgarner, Judge, presiding.

APPELLATE Judges:

JUSTICE SPITZ delivered the opinion of the court. GREEN, P.J., and LUND, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SPITZ

The State appealed (107 Ill. 2d R. 604) from an order of the circuit court of Putnam County dismissing charges of aggravated assault (No. 84-CM-19) and battery (No. 84-CM-24) (Ill. Rev. Stat. 1985, ch. 38, pars. 12-2(a)(1), 12-3) against defendant Charles H. Lucas on double jeopardy grounds. On appeal, this court affirmed the judgment of the circuit court based upon the supreme court's decisions in People v. Gray (1977), 69 Ill. 2d 44, 370 N.E.2d 797, cert. denied (1978), 435 U.S. 1013, 56 L. Ed. 2d 395, 98 S. Ct. 1887. (People v. Lucas (1986), 146 Ill. App. 3d 5, 496 N.E.2d 525.) The supreme court has vacated that judgment and remanded the cause to this court for further consideration in light of its decision in People v. Totten (1987), 118 Ill. 2d 124, 514 N.E.2d 959, overruling portions of its decision in Gray. People v. Lucas (Dec. 17, 1987), Docket No. 64082 (unpublished supervisory order).

The record discloses that on May 8, 1984, Carolyn A. Lucas, then the defendant's wife, filed a motion in a pending dissolution proceeding (In re Marriage of Lucas, No. 84-D-7), seeking temporary custody, support, maintenance, injunctive and temporary relief, and a temporary restraining order. That day the trial court entered an agreed order in that cause, restraining both parties from "striking or otherwise interfering with [the] personal liberty of the other," and awarding Carolyn temporary and exclusive possession of the marital residence.

On May 17, 1984, defendant apparently telephoned Carolyn and "engaged in a series of verbal threats . . . [stating] that he would commit some illegal and/or criminal act which would result in his incarceration . . . for approximately 20 years." Also that day defendant "forcefully broke into the marital residence . . . and remained [there] throughout [that] evening." As a result of this incident, Carolyn filed a petition for rule to show cause on May 21, 1984, alleging that defendant's "conduct . . . constitutes a wilful and intentional failure and refusal to abide by the terms of . . . the agreed Court Order entered . . . May 8, 1984." On May 22, 1984, the trial court entered a rule to show cause and set the matter for hearing. At the May 29, 1984, hearing on the rule to show cause, the parties stipulated to the facts and to the Disposition. Then on June 19, 1984, the court entered an order on the rule to show cause that found defendant to be in contempt of court for the wilful failure and refusal to obey the May 8, 1984, court order. This order stayed sentencing on the contempt, and defendant was ordered to continue regular counseling and treatment with Alcoholics Anonymous and his psychiatrist and was to comply with all previous court orders.

On June 24, 1984, defendant again entered the marital residence, during which time he allegedly held Carolyn in a "strangle hold," while holding a knife to her throat, and stated that he "was going to get even now; for kicking him out of his house." On June 26, 1984, Carolyn signed a criminal complaint (No. 84-CM-19), charging defendant with aggravated assault (Ill. Rev. Stat. 1985, ch. 38, par. 12-2(a)(1)). Due to this incident, counsel representing Carolyn in the dissolution proceeding filed a notice on June 27, 1984, requesting the contempt matter be called for sentencing. The matter was continued to July 10, 1984, at which time the trial court entered an agreed order, sentencing defendant on the contempt to one weekend of incarceration and two additional weeks of work release. The imposition of work release was stayed and was to be "implemented only upon [defendant's] failure . . . to comply with the terms and provisions of all orders of [the] court."

On September 1, 1984, defendant allegedly struck Carolyn "8 to 9 times in the back of the head and neck with a beer glass until the glass broke leaving pieces of glass in her neck." Following this incident, Carolyn signed a complaint (No. 84-CM-24) charging defendant with battery (Ill. Rev. Stat. 1985, ch. 38, par. 12-3). On September 4, 1984, Carolyn filed a petition for rule to show cause based on this incident, alleging that defendant had again wilfully violated the terms of the May 8, 1984, restraining order. The court issued the rule to show cause and set the matter for hearing.

On September 25, 1984, a sentencing hearing was held on the second rule to show cause. Thereafter, the court entered an agreed order finding that defendant had served two weeks' work release, as previously ordered on July 10, 1984, concurrently with his confinement on the pending criminal charges. In sentencing on the contempt, the court ordered defendant to continue "in hospitalization alcohol treatment at the Ottawa Community Hospital" with his psychiatrist. Defendant was further ordered to: "[Continue] work release concurrent with the work release ordered as a condition of his criminal bond. Work release shall terminate when he is committed to the Ottawa Community Hospital by [his psychiatrist]."

On October 9, 1984, the pending aggravated assault and battery prosecutions (Nos. 84 -- CM -- 19, 84 -- CM -- 24) were continued subject to being called in by notice. No action had been taken on these cases prior to this time, other than defendant entering pleas of not guilty to both criminal charges.

Thereafter, on November 20, 1984, an agreed order modifying defendant's visitation was entered in the dissolution proceedings, in ...


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