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September 27, 1996


Appeal from the Circuit Court of Cook County. Honorable Themis Karnezis, Judge Presiding.

Released for Publication October 22, 1996. As Corrected October 15, 1996.

The Honorable Justice Gordon delivered the opinion of the court: McNULTY, P.j., and Cousins, Jr., J., concur.

The opinion of the court was delivered by: Gordon

JUSTICE GORDON delivered the opinion of the court:

The defendant, Jerome Schram, was indicted in February 1994 with six counts of forgery. The indictments alleged that with the intent to defraud, the defendant made, altered and delivered motor fuel distributor licenses, gasoline tax ordinance certificates of registration, new account applications, business applications and tax exemption authorizations in violation of section 17-3(A) (1) of the Criminal Code of 1961 (the Code) (720 ILCS 5/17-3(A)(1) (West 1994)). Schram filed a motion to dismiss the charges, claiming that his prosecution for forgery was precluded because it would constitute double jeopardy under section 3-4 of this Code (720 ILCS 5/3-4 (West 1994)) in light of an earlier indictment; that the forgery action should have been brought at the time of that earlier indictment based on the compulsory joinder statute (720 ILCS 5/3-3(b) (West 1994)); that the indictment was insufficient to state the offense of forgery; and that his due process rights had been violated based on alleged prosecutorial misconduct before the grand jury and on an alleged two-year delay in seeking this indictment. The trial court denied Schram's motion to dismiss, and Schram appeals from that order pursuant to Illinois Supreme Court Rule 604(f) (145 Ill. 2d R. 604(f)).

The facts are undisputed. On May 11, 1992, the State sought a grand jury indictment against Schram for alleged violations of the Illinois Motor Fuel Tax (Ill. Rev. Stat. 1991, ch. 120, par. 417 et seq. (now at 35 ILCS 505/1 et seq. (West 1994))) (hereinafter referred to as the "IMFTA"), which provides criminal penalties for the nonpayment of taxes in various transactions involving the purchase and sale of motor fuel and for the sale or distribution of motor fuel without a license. Pursuant to that statute, indictments were returned against Schram which alleged that between September and December of 1991, in violation of the IMFTA, Schram failed to file motor fuel tax returns, failed to remit motor fuel tax payments, and distributed motor fuel without a license. The trial court granted Schram's motion to dismiss those indictments, stating that they failed to allege illegal conduct with sufficient specificity, that they were "drafted in a somewhat sloppy fashion," and that they "would not give [the defendant] an opportunity to defend or to be freed from double jeopardy." The trial court indicated that these insufficiencies could be "cleaned-up" and that the defendant could be re-indicted under the IMFTA. The State chose not to appeal the order of dismissal and did not attempt to correct the deficiencies in order to re-indict Schram under the IMFTA.

On February 22, 1994, the State appeared before another grand jury seeking to indict Schram for forgery in violation of 720 ILCS 5/17-3(A)(1) (West 1994), which provides that a person commits forgery when "with the intent to defraud, he knowingly *** makes or alters any document apparently capable of defrauding another." Testimony before the grand jury alleged that Schram tendered forged documents to Tropicana Energy Company and to Martin Oil Company purporting to show Schram's official authorization to purchase several tanker loads of gasoline and that Schram presented those documents in order to avoid the payment of motor fuel transaction taxes. In particular, the State alleged that Schram made, altered and delivered forged documents including a federal registration for gasoline tax with an identification number which had never been issued to Schram; an Illinois Motor fuel distributor's license which was never issued by the Illinois Department of Revenue and which was signed by a director of the Department of Revenue who was not employed by that department when that license was purportedly issued; a Cook County gasoline tax ordinance certificate of registration never issued by Cook County to Schram; a business application and tax exemption authorization bearing a State of Illinois motor fuel number never issued by the State to Schram; and state and county tax numbers never issued by those entities to Schram. The grand jury testimony regarding the alleged forgeries also revealed that prior to the IMFTA indictments, the Illinois Department of Revenue agents investigating Schram knew of the transactions and documents which formed the basis for the instant forgery indictments.

In his motion to dismiss the forgery indictments, Schram urged the following five contentions of error: (1) that his prosecution for forgery was barred under double jeopardy principles pursuant to section 3-4 (720 ILCS 5/3-4 (West 1994)) in light of the May 1992 indictment under the IMFTA; (2) that his prosecution was barred by section 3-3(b) of the Criminal Code of 1961, the compulsory joinder statute (720 ILCS 5/3-3(b) (West 1994)), which he alleged required that the current forgery indictments be prosecuted with the May 1992 IMFTA indictments in a single action; (3) that the current indictment was insufficient to state the offense of forgery; (4) that his due process rights were violated by prejudicial prosecutorial statements before the grand jury regarding the May 1992 indictment; and (5) that his due process rights were violated by the State's two-year delay since the May 1992 indictment in prosecuting the current allegations.

The trial court denied defendant's motion to dismiss the forgery indictments. With respect to Schram's double jeopardy claim, the court stated that because the May 1992 indictment was terminated by a dismissal, it was not a "conviction or an acquittal" under the former jeopardy statute and therefore could not serve as the basis of a double jeopardy defense in the instant action. With respect to Schram's compulsory joinder claim, the trial court stated that the IMFTA indictment was based on different acts and required different proofs than does the forgery indictment, that "the court does not *** view the dismissal [of the May 1992 indictment] as a prosecution" under the compulsory joinder statute, and that therefore Schram's compulsory joinder claim must fail. With respect to Schram's contention that the current indictments were insufficient to state the offense of forgery, the trial court stated that the indictment was sufficient to advise the defendant of the charges against him. Finally, with respect to Schram's due process arguments, the trial court stated that Schram failed to show that the two-year delay in obtaining the forgery indictments prejudiced him.

On appeal, Schram advances the same five arguments that he presented to the trial court in his motion to dismiss, and contends that on each of those five bases the court erred in denying his motion. In his jurisdictional statement, the defendant purports to predicate the jurisdiction of this court upon Illinois Supreme Court Rule 604(f) (145 Ill. 2d R. 604(f)), which the state purports to concede in its jurisdictional statement. Rule 604(f) provides that a criminal defendant "may appeal to the Appellate Court the denial of a motion to dismiss a criminal proceeding on grounds of former jeopardy." (Emphasis added). 145 Ill. 2d R. 604(f). Although the State does not contest appellate jurisdiction, jurisdiction cannot be waived or stipulated to by the parties. ( Provident Life & Accident Ins. Co. v. Smith, 266 Ill. App. 3d 705, 639 N.E.2d 627, 203 Ill. Dec. 307 (1994)), and this court has a duty to examine matters pertaining to its jurisdiction sua sponte. Almgren v. Rush Presbyterian-St. Luke's Medical Center, 162 Ill. 2d 205, 642 N.E.2d 1264, 205 Ill. Dec. 147 (1994); Ferguson v. Riverside Medical Center, 111 Ill. 2d 436, 490 N.E.2d 1252, 96 Ill. Dec. 47 (1985). Therefore, we must determine whether jurisdiction under Rule 604(f) will properly vest jurisdiction in this court with respect to each of the five contentions on appeal, as opposed to vesting jurisdiction solely with respect to those contentions pertaining to former jeopardy.

Appellate courts lack jurisdiction to review nonfinal judgments, orders and decrees absent statutory exceptions. Village of Niles v. Szczesny, 13 Ill. 2d 45, 147 N.E.2d 371 (1958); People v. Culhane, 34 Ill. App. 3d 158, 340 N.E.2d 63 (1975). Ordinarily, a trial court's order denying a defendant's motion to dismiss criminal charges is a nonfinal and therefore a nonappealable order, except to the extent specifically provided under applicable statutory exceptions. People v. Miller, 35 Ill. 2d 62, 219 N.E.2d 475 (1966); People v. Culhane. Supreme Court Rule 604 contains such statutory exceptions, and the only part of that rule applicable in the instant case is Rule 604(f), which permits a defendant to appeal from the denial of a motion to dismiss a criminal proceeding where that motion was based on former jeopardy principles. See, e.g., People v. Thomann, 197 Ill. App. 3d 516, 554 N.E.2d 755, 143 Ill. Dec. 820 (1990); People v. Hogan, 186 Ill. App. 3d 267, 542 N.E.2d 178, 134 Ill. Dec. 178 (1989).

However, the scope of review of an order in a Rule 604(f) appeal is limited to a former jeopardy analysis, and does not extend to a review of alleged errors which could not independently form the basis for appellate jurisdiction under Rule 604(f). People v. Stefan, 208 Ill. App. 3d 205, 567 N.E.2d 18, 153 Ill. Dec. 303 (1991), rev'd on other grounds, 146 Ill. 2d 324, 586 N.E.2d 1239, 166 Ill. Dec. 910 (1992). In Stefan, the defendant appealed from an order denying his motion to dismiss an indictment pursuant to Rule 604(f). The defendant urged that the trial court erred in denying his motion because the indictment was barred on double jeopardy grounds, and because it did not plead the offenses charged with sufficient specificity. The Stefan court held that Rule 604 did not confer appellate jurisdiction over the defendant's allegation of error regarding the vagueness of the indictment, but, rather, that it confined review on appeal to defendant's double jeopardy contentions. The court in Stefan stated:

"Regarding the second contention, we note that Supreme Court Rule 604 [citation] does not permit interlocutory appeals from an order denying the motion to dismiss on grounds of vagueness or an order overruling a defendant's objections to an amended bill of particulars. Thus, the second argument is improperly before us and will not be addressed on appeal." 208 Ill. App. 3d at 206-07, 567 N.E.2d at 19.

We note that while Stefan was reversed on its substantive holding which affirmed the trial court's denial of the defendant's motion to dismiss on double jeopardy grounds, its restriction of the issues to be considered on appeal pursuant to Supreme Court Rule 604(f) remained unchallenged. See by analogy People v. Kerr-McGee Chemical Corp., 142 Ill. App. 3d 1104, 492 N.E.2d 1003, 97 Ill. Dec. 344 (1986) (scope of review in interlocutory appeal brought under Illinois Supreme Court Rule 307 concerning the denial of a request for an injunction does not encompass allegations of error not narrowly bearing on that denial). Accord Caudle v. Sears, Roebuck & Co., 245 Ill. App. 3d 959, 614 N.E.2d 1312, 185 Ill. Dec. 627 (1993) (controverted facts or the merits of the case are not decided on an interlocutory appeal brought pursuant to Rule 307); Lindsey v. Board of Education, 127 Ill. App. 3d 413, 468 N.E.2d 1019, 82 Ill. Dec. 365 (1984) (appeals permitted by Rule 307 do not open the door to a general review of other issues ...

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