Appeal from the Circuit Court of Cook County. Honorable Morton Zwick, Judge Presiding.
Petition for Leave to Appeal Denied December 6, 1995.
The Honorable Justice Sheila O'brien delivered the opinion of the court: Cahill, J. concurs. Hoffman, P.j. dissents.
The opinion of the court was delivered by: O'brien
JUSTICE SHEILA O'BRIEN delivered the opinion of the court:
On May 15, 1992, the State filed a criminal information charging defendant, Thaddeus Pudlo, with violating section 86-6 of the Litter Control Actby allowing "litter to accumulate upon [his property at 1651-1653 West Hubbard] in such a manner as to constitute a public nuisance or in such a manner that the litter may be blown or otherwise carried by the natural elements on to the real property of another person." The State contended defendant allowed the litter to accumulate from May 20, 1991, to May 8, 1992. Following a bench trial, defendant was found guilty and sentenced to two years' probation and fined $500. On appeal, defendant argues the trial court erred when it denied his motion to dismiss the information on double jeopardy grounds. We affirm.
In his motion to dismiss filed April 26, 1993, defendant argued that on November 17, 1992, the trial court found he had committed 113 violations of the Chicago Municipal Code by allowing various forms of rubbish and debris to accumulate on his property at 1649-1653 West Hubbard. The violations occurred between May 21, 1991, and July 22, 1992, and the trial court imposed a fine of $3,625,050. Defendant contended the trial court should dismiss the criminal information on double jeopardy grounds because his violations of the Municipal Code constituted the same conduct which formed the basis of the criminal charge. The trial court denied defendant's motion and later convicted him of violating the Litter Control Act.
On appeal, defendant contends the trial court erred by denying his motion to dismiss the criminal information based on double jeopardy. The double jeopardy clause of the fifth amendment to the United States Constitution provides 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 of 1970 provides "no person shall * * * be twice put in jeopardy for the same offense." (Ill. Const. 1970, art. I., § 10.) The double jeopardy clause protects against three distinct abuses: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. People v. Levin (1993), 157 Ill. 2d 138, 144, 623 N.E.2d 317, 191 Ill. Dec. 72.
The third of these protections is the subject of this appeal. Defendant argues his violation of section 86-6 of the Litter Control Act from May 21, 1991, to May 8, 1992, involves the same conduct as 13 of his Municipal Code violations over the same time period. Defendant contends his fine for the 13 Municipal Code violations and his two-year probation term and $500 fine for violating section 86-6 of the Litter Control Act constitute multiple punishments for the same offense and, thus, violate the constitutional prohibition against double jeopardy.
The State argues the fine imposed by the trial court under theMunicipal Code is a civil penalty which does not constitute "punishment" for double jeopardy analysis. We need not address that issue since, for the reasons that follow, we hold none of defendant's 13 Municipal Code violations constitute the same offense as his violation of the Litter Control Act.
In United States v. Dixon (1993), 509 U.S. , 113 S.Ct. 2849, 125 L. Ed. 2d 556 the Supreme Court reaffirmed that the test set forth in Blockburger v. United States (1932), 284 U.S. 299, 52 S.Ct. 180, 76 L. Ed. 306, governs what constitutes the same offense for double jeopardy purposes. Under Blockburger, two offenses are the same if they have identical statutory elements or if one offense is a lesser included offense of the other. ( Blockburger, 284 U.S. at 304, 52 S.Ct. at 182, 76 L.Ed. at 309.) Two offenses are different if each requires proof of an element the other does not have. Blockburger, 284 U.S. at 304, 52 S.Ct. at 182, 76 L.Ed. at 309.
Therefore, we begin our analysis by comparing the elements of section 86-6 of the Litter Control Act with the elements of the 13 Municipal Code sections defendant violated. Section 86-6 provides:
"No person shall allow litter to accumulate upon real property, which the person charged is the owner or tenant in control, in such a manner as to constitute a public nuisance or in such a manner that the litter may be blown or otherwise carried by the natural elements on to the real property of another person." Ill. Rev. Stat. 1991, ch. 38, par. 86-6 (now 415 ILCS 105/6 (West 1992).)
Twelve of the Municipal Code sections defendant violated contain elements notrequired in section 86-6 of the Litter Control Act. See sections 15-4-970 and 13-196-580 (d) (prohibiting forms of trash which constitute a fire hazard); 7-28-060 and 5-4-090 (prohibiting buildings infected with disease); 13-196-620(a) (requiring family units be in a "safe" condition); 13-196-630(b) (requiring owners to maintain and repair their equipment); 5-4-080 (requiring floor beneath any water closet be kept in good repair); 7-28-720 (prohibiting forms of trash unless placed on open racks at least 18 inches above the ground); 7-28-040 (prohibiting abandonment of refrigerators and iceboxes with attachable doors in any place accessible to children); 7-28-240 and 7-28-450(a) and 7-28-450(b) (requiring owner to remove refuse, as opposed to the Litter Control Act's prohibition against allowing litter to accumulate in the first place). Also, unlike section 86-6 of the Litter Control Act, none of those 12 Municipal Code sections specifically prohibits litter which can be blown on to the real property of another person. Since each of the 12 Municipal Code sections contain elements not required in section 86-6 of the Litter Control Act, and vice versa, they are not the same offense for double jeopardy purposes.
Defendant failed to provide us the text of the 13th municipal ordinance he violated, section 4-344-610. In its absence, we presume section 4-344-610 is not the same offense for double jeopardy purposes as section 86-6 of the Litter Control Act. See Glater v. Fabianich (1993), 252 Ill. App. 3d 372, 377, 625 N.E.2d 96, 192 Ill. Dec. 136 (it is the appellant's duty to provide a complete record containing all matters relevant ...