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March 21, 1994


Appeal from the Circuit Court of Winnebago County. No. 91-CF-1331. Honorable Harris H. Agnew, Judge, Presiding.

Petition for Leave to Appeal Denied October 6, 1994.

Bowman, McLAREN, Colwell

The opinion of the court was delivered by: Bowman

JUSTICE BOWMAN delivered the opinion of the court:

After the trial in this case started, defendant, Raymond Ryan, moved to dismiss the indictment. The trial court granted the motion because of defects in the indictment, and defendant was subsequentlyreindicted. The issue raised is whether the reindictment violated constitutional protections against double jeopardy.

Defendant was charged by indictment with two counts of theft. Count I alleged that the property taken had a value in excess of $100,000, and count II alleged a property value in excess of $10,000. After the jury was sworn and testimony began the defendant moved to dismiss both counts, contending that the indictments were defective because they alleged values over $100,000 and $10,000 while the statutes that designated those values as greater felony classifications were not enacted until after the crime was committed. A motion by the prosecutor for leave to amend the bill of indictment was denied, as was defendant's motion to dismiss, and the trial continued with cross-examination of the first witness and direct examination of a second witness. The prosecutor then moved to dismiss count I and proceed on count II. Following a recess, the trial Judge, Judge Smith, again considered the parties' motions. Ultimately finding that there was no statute to support count II and that there was merit in defendant's position, the court granted both parties' motions and dismissed the charges.

The State subsequently secured a one-count reindictment of defendant. With the exception of the dollar amount, the new indictment alleged precisely the same basic facts as had been alleged in both count I and count II of the earlier indictment. The sole count of the new indictment asserted a value in excess of $300. This new dollar amount brought the charge into conformity with the statute effective at the time of the offense. (Ill. Rev. Stat. 1983, ch. 38, pars. 16-1(a)(1), (e)(3) (now codified, as amended, at 720 ILSC 5/16(a)(4)(A), 16(b)(4) (West 1991)).) The new case was assigned to Judge Agnew. Defendant again moved to dismiss, asserting that further prosecution was violative of the double jeopardy clause. Finding that Judge Smith had dismissed count II of the earlier case with prejudice, Judge Agnew ruled that the dismissal was a final order and that jeopardy had attached. Accordingly, he granted defendant's motion and dismissed the case.

The State moved for reconsideration, but Judge Agnew denied the motion, stating as grounds that the original indictments had been valid; that the original prosecution, therefore, had been terminated improperly; and that the matter could not now be reprosecuted. The State timely filed this appeal.

The State first contends Judge Agnew erred in finding that Judge Smith dismissed the earlier case with prejudice. While defendant's motion sought dismissal "with prejudice," Judge Smith did not use those words in orally announcing his decision. He merely granted themotion and added that "the charges are dismissed." Defendant posits essentially that, since his motion requested dismissal with prejudice, and Judge Smith granted the motion and returned his bond money, the case was dismissed with prejudice. We disagree.

A dismissal with prejudice constitutes an adjudication on the merits of the case which is conclusive of the rights of the parties and, in a criminal context, is tantamount to an acquittal. ( People v. Creek (1983), 94 Ill. 2d 526, 531-33, 69 Ill. Dec. 113, 447 N.E.2d 330.) The constitutional guarantee against double jeopardy provides protection against a second prosecution on the same charge after acquittal. ( People v. Stefan (1992), 146 Ill. 2d 324, 333, 166 Ill. Dec. 910, 586 N.E.2d 1239, citing Illinois v. Vitale (1980), 447 U.S. 410, 415, 65 L. Ed. 2d 228, 235, 100 S. Ct. 2260, 2264; Creek, 94 Ill. 2d at 532.) These rules leave no doubt that, if Judge Smith dismissed count II of the original indictment with prejudice, double jeopardy indeed barred the reindictment of defendant. The record, however, does not reflect that the dismissal was with prejudice.

First of all, despite defendant's clear motion for relief "with prejudice," the trial court's oral pronouncement merely stated that the charges were dismissed. Judge Smith did not specify that he dismissed with prejudice. Nor is there a written order showing the nature of the dismissal. It appears no separate order was entered into the record. The State cites to a document labeled "Witness and Jury Record" which contains the only written reference to the dismissal that we have been able to find. It states only, "case dismissed, jury discharged," and speaks nothing of a dismissal with prejudice. All in all, the record of the trial court's order, on its face, cuts against defendant's argument.

Even if we look beyond the actual pronouncement made by the court, we find little support for defendant's position. A trial court order is to be interpreted in its entirety, taking into consideration other parts of the record, including the pleadings, the motions before the court, and the issues to be decided. ( Granville Beach Condominium Association v. Granville Beach Condominiums, Inc. (1992), 227 Ill. App. 3d 715, 720, 169 Ill. Dec. 673, 592 N.E.2d 160; City of Chicago v. American National Bank & Trust Co. (1988), 171 Ill. App. 3d 680, 687, 121 Ill. Dec. 608, 525 N.E.2d 915.) An order should be construed reasonably so as to give effect to the discernible intent of the court. ( Granville Beach, 227 Ill. App. 3d at 720; Baldi v. Chicago Title & Trust Co. (1983), 113 Ill. App. 3d 29, 33, 68 Ill. Dec. 808, 446 N.E.2d 1205.) We have carefully examined the transcript of the arguments and Discussions between the court and both counsel regarding defendant's motion to dismiss. Without exception those Discussions related to the defects in the bill of indictment. They revealed issues such as which statute controlled, whether the State could amend the indictment, and whether the State could proceed on both or only one count or could proceed at all. It is clear to us that the issues drawn, and the context in which the order was announced, had nothing to do with the merits of the case.

The remarks preceding his ruling are also persuasive that when Judge Smith dismissed the case he was concerned with the infirmities in the charges against defendant rather than the merits. The Judge stated: "The Motion is to proceed on Count II of the Indictment as it is alleged now. I think that's a statute that does not exist at this time. I feel the Defendant's position has merit here and I grant * * * the Defendant's Motion to Dismiss." Even defendant does not dispute that the trial court granted his motion to dismiss because of the defects in count II of the indictment.

Collectively, the context in which the trial Judge ruled, the issues he was deciding, and the Judge's own observations about the defendant's motion demonstrate that he did not intend his order to be a final adjudication on the merits, amounting to an acquittal of defendant. In fact, we see nothing in the record to show that the dismissal was with prejudice, except for the motion itself. While defendant no doubt intended that the charges should be dismissed with prejudice, that is not enough for us to find that, in fact, ...

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