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03/29/96 PEOPLE STATE ILLINOIS v. JOHN WILLIAMS

March 29, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JOHN WILLIAMS, DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE MICHAEL J. POPE, JUDGE PRESIDING.

Presiding Justice Campbell delivered the opinion of the court: Wolfson, J., and Braden, J., concur.

The opinion of the court was delivered by: Campbell

PRESIDING JUSTICE CAMPBELL delivered the opinion of the court:

Defendant John Williams appeals an order of the circuit court of Cook County denying defendant's motion to dismiss an indictment charging him with arson and felony murder.

The record on appeal indicates the following facts. On January 31, 1981, the defendant was arrested and charged by complaint with aggravated arson and three counts of felony murder in connection with a fire at 2400 Glendale Terrace in Hanover Park, which resulted in three deaths. On March 25, 1981, the State filed an information including these charges and six additional counts of murder alleging alternate mental states. However, on December 1, 1982, prior to trial, the State nol-prossed the additional counts of murder, leaving the charges of aggravated arson and felony murder.

Defendant's jury trial began on December 1, 1982. On December 14, 1982, the jury returned a guilty verdict on all counts. On March 18, 1983, the trial court denied defendant's post-trial motion and sentenced defendant to life imprisonment. Defendant filed a timely Notice of Appeal to this court, which affirmed the judgment of the circuit court on March 11, 1985. People v. Williams, 131 Ill. App. 3d 597, 475 N.E.2d 1082, 86 Ill. Dec. 703 (1985).

The Illinois Supreme Court later issued two decisions holding portions of the aggravated arson statute unconstitutional. ( People v. Johnson, 114 Ill. 2d 69, 499 N.E.2d 470, 101 Ill. Dec. 882 (1986); People v. Wick, 107 Ill. 2d 62, 481 N.E.2d 676, 89 Ill. Dec. 833 (1985).) On April 29, 1992, defendant filed a post-conviction petition, alleging that his conviction was based on an unconstitutional statute. On June 1, 1992, the trial court denied the petition as untimely filed; defendant appealed the ruling.

On July 5, 1992, while the appeal was pending, defendant filed a petition for a writ of habeas corpus, again asserting that his conviction was based on an unconstitutional statute. On October 5, 1992, the trial court granted defendant's petition. That same day, the State charged defendant by indictment with (non-aggravated) arson and three counts of felony murder, based on the January 31, 1981, fire.

On January 23, 1995, defendant filed a motion to dismiss the indictment, asserting that the State: (1) was barred from prosecuting him in violation of his constitutional right against double jeopardy and in violation of Illinois' compulsory joinder statute; (2) failed to comply with the speedy trial statute; (3) violated his right to due process by failing to preserve evidence in the case. On March 17, 1995, the trial court denied the motion to dismiss the indictment. On April 11, 1995, defendant filed a Notice of Appeal to this court, pursuant to Illinois Supreme Court Rule 604(f).

I.

Initially, it should be noted that the defendant appeals pursuant to Rule 604(f), which authorizes appeals from "the denial of a motion to dismiss a criminal proceeding on grounds of former jeopardy." The order appealed from expressly stated that the indictment did not violate defendant's right against double jeopardy. On appeal, however, defendant does not argue in his brief that the indictment violates his right against double jeopardy. *fn1 Rather, defendant argues that the State was barred from pursuing multiple prosecutions under sections 3-3 and 3-4 of the Criminal Code of 1961 ("Code") (720 ILCS 5/3-3, 3-4 (West 1992)). However, this court has held that such claims are appealable under Rule 604(f). People v. Hiatt, 229 Ill. App. 3d 1094, 1096, 595 N.E.2d 733, 735, 172 Ill. Dec. 372 (1992).

II.

Sections 3-3 and 3-4 of the Code provide the statutory guidelines prohibiting multiple prosecutions for the same act. (Ill. Rev. Stat. 1989, ch. 38, pars. 3-3, 3-4.) Under section 3-3(b), if several offenses are known to the State at the time of commencing prosecution and the offenses are within the jurisdiction of a single court, they generally must be joined in a single prosecution. (720 ILCS 5/3-3(b) (West 1992).) However, exceptions to this rule also exist. For example, section 3-4(d)(2) allows reprosecution

"if subsequent proceedings resulted in the invalidation, setting aside, reversal, or vacating of the conviction, unless the defendant thereby was adjudged not ...


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