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01/06/94 PEOPLE STATE ILLINOIS v. KIMBERLY MILLER

January 6, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
KIMBERLY MILLER, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Kane County. No. 91-CF-1137. Honorable John L. Petersen, Judge, Presiding.

Released for Publication February 8, 1994.

Woodward, McLAREN, Bowman

The opinion of the court was delivered by: Woodward

JUSTICE WOODWARD delivered the opinion of the court:

In this case we must decide whether the doctrine of double jeopardy prevents the State from prosecuting defendant, Kimberly Miller, for the unlawful possession of a stolen motor vehicle after it had previously prosecuted her for the improper use of a vehicle registration.

The record reveals the following facts. On July 26, 1991, Officer Carl Ensign of the Batavia police department made an investigatory stop of defendant's vehicle because the vehicle had no rear licence plate light. After running a computer check of the vehicle's registration, he determined that the registration displayed on the vehicle was invalid because it had been issued for a different vehicle. He then ran a computer check of the vehicle's identification number and discovered that the vehicle had been stolen. He then arrested defendant. He issued to defendant traffic citations for the improper use of a vehicle registration (Ill. Rev. Stat. 1989, ch. 95 1/2, par. 3-703 (now 625 ILCS 5/3-703 (West 1992))) and for driving a car with no rear registration plate light (Ill. Rev. Stat. 1989, ch. 95 1/2, par. 12-201(c) (now 625 ILCS 5/12-201(c) (West 1992))). On July 27, 1991, the State charged defendant with the unlawful possession of a stolen motor vehicle (Ill. Rev. Stat. 1989, ch. 95 1/2, par. 4-103(a)(1) (now 625 ILCS 5/4-103(a)(1) (West 1992))).

On September 23, 1991, pursuant to an agreement with the State, defendant stipulated to the improper use of a vehicle registration. The trial court imposed a fine and continued the cause under supervision. The State voluntarily dismissed the other traffic charge with leave to refile it. The State proceeded on the possession of a stolen motor vehicle charge.

Defendant then moved to dismiss the unlawful possession of a stolen motor vehicle charge. According to defendant, prosecuting that charge constituted double jeopardy because she had already been placed in jeopardy for the same offense when she stipulated to the improper use of a vehicle registration. The trial court denied defendant's motion. The trial court found that neither Blockburger v. United States (1932), 284 U.S. 299, 76 L. Ed. 306, 52 S. Ct. 180, nor Grady v. Corbin (1990), 495 U.S. 508, 109 L. Ed. 2d 548, 110 S. Ct. 2084, prevented the State from prosecuting defendant for the unlawful possession of a stolen motor vehicle. Defendant appealed that decision pursuant to Supreme Court Rule 604(f) which authorizes a defendant to appeal the trial court's denial of her motion to dismiss on the grounds of former jeopardy. 134 Ill. 2d R. 604(f).

We recently encountered a similar issue in People v. Mauricio (1993), 249 Ill. App. 3d 904, 619 N.E.2d 1348. In that case, we discussed the relevant law on double jeopardy as follows:

"The fifth amendment [to the United States Constitution] provides, in part, that no person shall be 'subject for the same offence to be twice put in jeopardy of life or limb.' (U.S. Const., amend. V.) [The Illinois Constitution contains a similar provision. (Ill. Const. 1970, art. I, § 10.)] The double jeopardy clause protects a defendant from: (1) a second prosecution after acquittal; (2) a second prosecution after conviction; and (3) multiple punishments for the same offense. People v. Stefan (1992), 146 Ill. 2d 324, 333, 586 N.E.2d 1239.

The Supreme Court has long held that the State cannot prosecute a defendant in successive prosecutions for the same criminal act under different statutes unless each statute 'requires proof of a fact which the other does not.' ( Blockburger v. United States (1932), 284 U.S. 299, 304, 76 L. Ed. 306, 309, 52 S. Ct. 180, 182.) The Blockburger test focuses on the statutory elements of each offense. ( People v. Hoskinson (1990), 201 Ill. App. 3d 411, 412, 559 N.E.2d 11.) Blockburger prohibits a second prosecution for the same criminal act if one offense has identical statutory elements or is a lesser-included offense of the other. ( People v. Astorga (1993), 245 Ill. App. 3d 124, 127, 613 N.E.2d 779.) For example, the State was precluded from prosecuting a defendant for auto theft after the State had already prosecuted that defendant for joyriding, where joyriding was a lesser-included offense of auto theft. Brown v. Ohio (1977), 432 U.S. 161, 166-67, 53 L. Ed. 2d 187, 195, 97 S. Ct. 2221, 2226.

In Harris v. Oklahoma (1977), 433 U.S. 682, 53 L. Ed. 2d 1054, 97 S. Ct. 2912, defendant was convicted of felony murder for participating in an armed robbery in which the victim was killed. In a per curiam opinion, the Court held that a subsequent prosecution of defendant for the same armed robbery would constitute double jeopardy. ( Harris, 433 U.S. at 682, 53 L. Ed. 2d at 1056, 97 S. Ct. at 2913.) Although robbery was not necessarily an element of felony murder because 'other felonies could underlie a felony-murder prosecution,' robbery was a 'species of lesser-included offense' of felony murder. Illinois v. Vitale (1980), 447 U.S. 410, 420, 65 L. Ed. 2d 228, 238, 100 S. Ct. 2260, 2267, interpreting Harris, 433 U.S. 682, 53 L. Ed. 2d 1054, 97 S. Ct. 2912.

In Grady v. Corbin (1990), 495 U.S. 508, 109 L. Ed. 2d 548, 110 S. Ct. 2084, the Court determined that '"the Blockburger test is not the only standard for determining whether successive prosecutions impermissibly involve the same offense.'" ( Grady, 495 U.S. at 519, 109 L. Ed. 2d at 563, 110 S. Ct. at 2092, quoting Brown v. Ohio (1977), 432 U.S. 161, 166-67 n.6, 53 L. Ed. 2d 187, 195 n.6, 97 S. Ct. 2221, 2226 n.6) According to the Court, 'a technical comparison of the elements of the two offenses as required by Blockburger does not protect defendants sufficiently from the burdens of multiple trials.' ( Grady, 495 U.S. at 520, 109 L. Ed. 2d at 564, 110 S. Ct. at 2093.) 'The Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted.' (Emphasis added.) Grady, 495 U.S. at 521, 109 L. Ed. 2d at 564, 110 S. Ct. at 2093." Mauricio, 249 Ill. App. 3d at 906-07.

Defendant concedes that the improper use of a registration and the unlawful possession of a stolen motor vehicle each contain elements that the other does not. Defendant thus concedes that Blockburger does not prohibit the State from prosecuting her for the unlawful possession of a stolen motor vehicle. Defendant argues, however, that in prosecuting defendant for the unlawful possession of a stolen motor vehicle, "the State would be required to show the defendant's operation of the * * * automobile at the same ...


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