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01/24/94 PEOPLE STATE ILLINOIS v. DOUGLAS BENSON

January 24, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
DOUGLAS BENSON, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Kane County. No. 91-CF-450. Honorable Barry E. Puklin, Judge, Presiding.

Released for Publication March 3, 1994.

Inglis, Geiger, Bowman

The opinion of the court was delivered by: Inglis

PRESIDING JUSTICE INGLIS delivered the opinion of the court:

Defendant, Douglas Benson, appeals, pursuant to Supreme Court Rule 604(f) (134 Ill. 2d R. 604(f)), from the order of the circuit court of Kane County denying his motion to dismiss count I of his indictment. Defendant was charged with two counts of home invasion (Ill. Rev. Stat. 1991, ch. 38, par. 12-11(a)(2) (now 720 ILCS 5/12-11(a)(2) (West 1992))). These charges stem from an incident wherein defendant allegedly entered the home of his ex-wife's boyfriend, Lawrence Pielet, and attacked his ex-wife and Pielet. This appeal addresses whether the double jeopardy clause prohibits the prosecution of defendant for home invasion arising out of the attack on Pielet when defendant had already been held in contempt of court for violating a protective order enjoining defendant from striking, harassing or interfering with the personal liberty of his ex-wife. We affirm.

Count I of the indictment alleged essentially that, on March 20, 1991, defendant entered the dwelling of Lawrence Pielet and intentionally injured Pielet by striking him in the face with his fists and throwing him on top of a table. Count II alleged that on the same date defendant entered Pielet's home and injured his ex-wife, Charene Benson, by throwing her into a window. The State filed this indictment on April 9, 1991.

Defendant moved to dismiss both counts of the indictment on double jeopardy grounds. In his amended motion to dismiss, defendant alleged that an order of protection had been entered pursuant to dissolution of marriage proceedings involving Charene and defendant. Defendant also alleged that Charene subsequently filed a petition for a rule to show cause, alleging a violation of this order of protection. In his motion, defendant quoted from Charene's petition. According to defendant, the petition read in relevant part as follows:

As and for Count I of her Petition * * * the plaintiff states:

1. That on February 25, 1991, an Agreed Order was entered herein enjoining the defendant from striking, harassing or interfering with the personal liberty of the plaintiff.

4. That on or about March 20, 1991, the defendant came to the home of Lawrence Pielet and forced his way into said home where he physically attacked both Lawrence Pielet and the plaintiff. He beat Lawrence Pielet on or about the face and knocked him unconscious and he shoved the plaintiff into and partially through an exterior window, breaking the glass, causing plaintiff to be struck about the side of the head with an attendant injury."

Defendant further alleged that, on May 6, 1991, there was a hearing on Charene's petition and the circuit court of Kendall County held defendant in contempt of court for violation of the order of protection. Defendant included, as part of the appendix to his appellant's brief, a copy of the court order finding defendant in contempt of court. This order is almost entirely illegible due to poor copy quality, does not contain the circuit court Judge's signature, and apparently was never file stamped by the circuit court clerk. A copy of the order does not appear in the trial court record. During the hearing on the motion to dismiss, however, defense counsel stated that he attached a copy of this order to his motion to dismiss.

At a hearing on June 11, 1992, neither party called any witnesses, and defense counsel summarized the facts of the case for the court. The trial court denied defendant's motion with respect to count I, stating "the hearing in the divorce court dealt with a specific injunction, a violation of that injunction, and I have not been shown that injunction or hearing dealt with the prohibition of entering Larry Pielet's house or injuring Larry Pielet." The trial court found, however, that prosecution under count II was barred by the double jeopardy clause and accordingly dismissed count II of the indictment.

Defendant moved to have the trial court reconsider its earlier ruling. In this motion, defendant alleged that there was no transcript available for the contempt hearing in Kendall County. Defendant attached to the motion to reconsider his affidavit and the affidavit of the attorney who represented him in the contempt proceedings. Both documents provided summaries of the contempt proceedings. Included in both affidavits was a statement that, at the hearing on Charene Benson's petition, the court heard evidence that defendant broke into Pielet's home and physically injured him. Neither document was signed or notarized, however. The trial court denied defendant's motion to reconsider, and this timely appeal followed.

Although the State has not raised this issue, we must first address defendant's failure to present a sufficiently complete record of the proceedings at trial. At the hearing on the motion to dismiss, defense counsel indicated that he submitted to the trial court a copy of the order finding defendant in contempt for violating the terms of the order of protection. The record, however, contains no ...


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