APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT
534 N.E.2d 695, 179 Ill. App. 3d 198, 128 Ill. Dec. 513 1989.IL.200
Appeal from the Circuit Court of Fayette County; the Hon. Richard Brummer, Judge, presiding.
JUSTICE GOLDENHERSH delivered the opinion of the court. HARRISON and HOWERTON, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GOLDENHERSH
Defendant, Darold Yarbrough, appeals from an order of the circuit court of Fayette County denying his motion to dismiss the second prosecution based upon the theory of double jeopardy. Defendant's issue on appeal is whether the second prosecution was barred by the statute of limitations or by the constitutional limitation of double jeopardy. This court affirms the circuit court's order.
On May 31, 1985, a bill of indictment, docket No. 85-CF-29, was filed charging defendant in count III with theft (Ill. Rev. Stat. 1981, ch. 38, par. 16-1(b)(1)). The indictment charged that on or about September 5, 1983, defendant "knowingly obtained by deception control over property of American States Insurance Company, being funds in the amount of $2137.50 . . . by causing a certain 1974 Ford F-250 truck to be reported stolen and falsely reported it [stolen] to Charles Pryor to defraud American States Insurance into paying $2137.50." Count III was later severed from the other counts.
On September 30, 1986, a trial by jury commenced on count III, and on October 6, 1986, the jury was deadlocked. The trial court declared a mistrial and discharged the jury.
However, on March 6, 1987, defendant was indicted on a new indictment with a new docket number of 87 -- CF -- 17 for the same offense of theft as in count III, except it added the following to the previous indictment:
"[The] said Darold Yarbrough intending to deprive American States Insurance permanently of the use or benefit of said funds, and the Statute of Limitations being tolled in this cause pursuant to Illinois Revised Statutes, chapter 38, section 3 -- 7(c) by the prosecution pursuant to Count III of a Bill of Indictment returned and filed May 31, 1985 in 85 -- CF -- 29 in violation of Paragraph 16 -- 1(b)(1), Chapter 38, Illinois Revised Statutes."
The People's affidavit stated that it was reindicting defendant "to correct a defective indictment because an essential element of the offense was omitted, namely that defendant intended to deprive the true owner permanently of the use or benefit of its property."
Soon thereafter, on March 30, 1987, the People filed a motion to nol-pros on count III of the original May 31, 1985, indictment, No. 85 -- CF -- 29. The trial court entered an order granting the People's motion.
On May 1, 1987, defendant filed a motion to dismiss with prejudice because defendant had been charged with the same offense. Defendant also alleged: (1) that the previous offense "failed to allege that defendant intended to permanently deprive the owner of the use or benefit of the property allegedly stolen"; (2) that the State dismissed the prior offense and action on March 30, 1987; (3) that the same and prior offense was tried by a jury trial and resulted in a mistrial due to a hung jury; and (4) that the present charge, which was filed on March 6, 1987, was neither a continuation of the prior and same offense nor identical. Defendant argued that the present cause was barred by the statute of limitations, right to speedy trial and double jeopardy and as such the trial court does not have jurisdiction.
On May 15, 1987, the court denied in part defendant's motion to dismiss based on the statute of limitations and the right to a speedy trial. The remaining argument of double jeopardy was taken under advisement. On May 26, 1987, the court entered a written order confirming its prior order of partial denial of defendant's motion to dismiss and added that it denied his ...