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11/15/88 the People of the State of v. John Foster

November 15, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT

v.

JOHN FOSTER, JR., DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

531 N.E.2d 93, 176 Ill. App. 3d 406, 125 Ill. Dec. 914 1988.IL.1654

Appeal from the Circuit Court of Pulaski County; the Hon. George Oros, Judge, presiding.

APPELLATE Judges:

JUSTICE LEWIS delivered the opinion of the court. HARRISON P.J., and CALVO, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LEWIS

The State of Illinois appeals from an order of the circuit court of Pulaski County dismissing a charge of reckless driving against the defendant, John Foster, Jr.

On October 14, 1986, the defendant was charged by information with reckless driving in violation of section 11-503 of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-503). The State charged that on June 16, 1986, the defendant drove at a high rate of speed, lost control of his vehicle, and struck a utility pole and a fence, thereby damaging property and endangering the safety of Bobby Dover, Jr. Dover was a passenger in the defendant's car.

The defendant had also been charged with two traffic offenses at the time of the accident: (1) driving too fast for conditions in violation of section 11-601(a) of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-601(a)) and (2) failure to wear seat belts in violation of section 12-603.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 12-603.1(a)). At the first appearance and pretrial conference for the reckless driving charge, held on October 16, 1986, defendant and the State's Attorney agreed to try the three charges together.

On October 27, 1986, the State filed a motion in limine and a hearing was held on this motion the same day. Following arguments on the motion, defense counsel stated that his client wished to plead guilty to the driving-too-fast-for-conditions and the no-seat-belt charges. The court accepted the defendant's pleas and fined him a total of $325. The defendant then asked the court to dismiss the reckless driving charge on the ground that prosecution of that offense after a plea of guilty to the too-fast-for-conditions charge would constitute double jeopardy. Defendant also claimed that further prosecution of the reckless driving charge was barred by sections 3-3 and 3-4 of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, pars. 3-3, 3-4).

Section 3 -- 3 provides that if 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, if they are based on the same act. Section 3 -- 4(a) provides that a prosecution is barred if the defendant was formerly prosecuted for the same offense, based upon the same facts, if the former prosecution resulted in either a conviction or an acquittal. This section further provides that a conviction of an included offense is an acquittal of the offense charged. Subparagraph (b) of section 3 -- 4 provides that a prosecution is barred if the defendant was formerly prosecuted for a different offense if such former prosecution resulted in either a conviction or an acquittal, and the subsequent prosecution is for an offense of which the defendant could have been convicted on the former prosecution; or was for an offense with which the defendant should have been charged on the former prosecution as provided in section 3 -- 3; or was for an offense which involved the same conduct, unless each prosecution requires proof of a fact not required on the other prosecution.

The defendant argued that, as charged, the too-fast-for-conditions offense was a lesser included offense of reckless driving and that the two offenses were based on the same conduct. The court granted the defendant's motion to dismiss, finding that the too-fast-for-conditions offense was a lesser included offense of reckless driving. The court denied the State's motion to reconsider at a hearing held on November 13, 1986, concluding that the defendant's guilty pleas precluded prosecution for the reckless driving charge on "the same set of facts." The court cited that part of section 3-4 that states that "[a] conviction of an included offense is an acquittal of the offense charged" as the basis for its Conclusion. (Ill. Rev. Stat. 1985, ch. 38, par. 3-4(a).) The State now appeals. We reverse.

The trial court concluded that the too-fast-for-conditions charge was a lesser included offense of the reckless driving charge. We hold that it was not. In People v. Jackson (1987), 118 Ill. 2d 179, 514 N.E.2d 983, the Illinois Supreme Court explained that to determine whether two charges constitute the "same offense" involves a two-part analysis. First, if, as a matter of law, the first lesser offense is always a necessary element of the second greater offense, then the two are the same under Blockburger v. United States (1932), 284 U.S. 299, 76 L. Ed. 306, 52 S. Ct. 180. This test focuses on the elements of the offenses charged and not on the evidence that may possibly be introduced to prove the charges. (Jackson, 118 Ill. 2d at 189, 514 N.E.2d at 987.) Second, in limited circumstances, courts may look beyond the face of the statute involved to the elements actually necessary to establish the charges. This occurs when the first offense, with its concomitant elements, becomes itself the element necessary to prove the second offense. Double jeopardy is not violated, however, merely because there is substantial overlap in the proof used in successive prosecutions for distinct crimes unless there is an issue of collateral estoppel. Jackson, 118 Ill. 2d at 187, 514 N.E.2d at 986.

Applying this analysis to the statutory elements of reckless driving and driving too fast for conditions, we see that the two offenses are not the same. Reckless driving (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-503) requires a wilful and wanton disregard for the safety of persons or property. Driving too fast for conditions is not a statutory element of reckless driving and such evidence would not be necessary for conviction of that offense. While reckless driving may often include driving "at a speed which is greater than is reasonable and proper" (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-601(a)), it is not always a necessary element of that offense.

The second part of the analysis requires determining whether the conviction of driving too fast for conditions automatically established one or more of the essential elements of ...


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