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05/31/88 the People of the State of v. Nicholas Mitsakopoulos

May 31, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT

v.

NICHOLAS MITSAKOPOULOS, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

524 N.E.2d 1183, 171 Ill. App. 3d 198, 121 Ill. Dec. 135 1988.IL.850

Appeal from the Circuit Court of Cook County; the Hon. Thomas P. Durkin, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE CAMPBELL delivered the opinion of the court. BUCKLEY and O'CONNOR, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CAMPBELL

Defendant, Nicholas Mitsakopoulos, was charged by indictment with the offenses of theft and forgery. Defendant moved to dismiss the theft counts and the trial court granted the motion. The State appealed the dismissal, and while the appeal was pending, defendant proceeded to trial on the forgery charges and was acquitted. Thereafter, this court issued a Rule 23 (107 Ill. 2d R. 23) order which reversed the order of the trial court dismissing the theft counts and remanded the matter for further proceedings. In the trial court, the defendant again moved to dismiss the theft counts and the trial court again granted defendant's motion. The State now appeals from the second dismissal order.

The defendant was indicted on October 20, 1983. The charges arose from a complaint filed by Elizabeth Hullman which alleged that the defendant, who was helping her manage the financial affairs of her deceased husband's estate, had used life insurance proceeds for himself instead of investing them for her. Prior to his death, Mrs. Hullmann's husband, Gustaf, entered into an agreement with defendant which provided that defendant would handle the deceased's financial affairs. Mr. Hullmann had taken out insurance policies on his life with the Washington National Insurance Company. Mrs. Hullmann, however, was unaware of the existence of these policies. Specifically, counts I and II of the indictment alleged that on September 22, 1978, the defendant committed theft and theft by deception by depositing a $66,470.06 check representing life insurance proceeds in his personal banking account which was the property of Elizabeth Hullmann. Count III alleged that on June 21, 1978, the defendant committed a forgery when he sent a claimant statement to Washington National Insurance Company to which he signed Elizabeth Hullmann's signature and requested that any correspondence be sent to defendant's address. Count IV alleged that the defendant committed a forgery on September 22, 1978, when he signed the name of Elizabeth Hullmann to the check.

On July 21, 1984, defendant filed a motion to dismiss the theft counts contending that the State failed to inform the grand jury that it was seeking the indictment pursuant to an exception to the statute of limitations. The defendant's motion to dismiss counts I and II was granted. On September 26, 1984, the State filed its notice of appeal seeking review of the dismissal order. On July 30, 1985, the State proceeded to trial on the forgery counts and the defendant was found not guilty.

Following the acquittal, this court issued a Rule 23 order on April 21, 1986, reversing the trial court's order dismissing the theft counts and remanding the matter for further proceedings. The theft counts were reinstated and redocketed in the trial court. Thereafter, the defendant filed a second motion to dismiss the theft counts contending that the compulsory joinder statute (Ill. Rev. Stat. 1985, ch. 38, pars. 3-3, 3-4) precluded the State from further pursuing the prosecution of the defendant since all charges should have been prosecuted in one proceeding. On October 23, 1986, the trial court granted the motion, ruling that in the interest of judicial economy the State should have suspended further proceedings pending outcome of the appeal. This appeal is from the second order of dismissal of the theft counts.

The State argues on appeal that defendant's trial on the forgery counts was a nullity and there is no basis to bar his trial now on the theft counts. Defendant responds that a trial on the theft counts is barred by the compulsory joinder statute.

The compulsory joinder provisions of the Criminal Code of 1961 state, in part:

"Sec. 3 -- 3. Multiple Prosecutions for Same Act. (a) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense.

(b) If the several offenses are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution, except as provided in Subsection (c), if they are based on the same act.

(c) When 2 or more offenses are charged as required by Subsection (b), the court in the interest of Justice may order that one or more of ...


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