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People v. Kelly

October 06, 1998

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
OLLIE KELLY, DEFENDANT-APPELLANT.



The opinion of the court was delivered by: Justice Slater

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS

Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois,

No. 93--CF--5255

Honorable Barbara Badger, Judge, Presiding.

After a bench trial, defendant, Ollie Kelly, was convicted of four counts of hate crime (720 ILCS 5/12--7.1 (West 1994)). The trial court vacated one count and sentenced defendant to 30 months of probation on the remaining three counts. On appeal, defendant contends: (1) his convictions must be reversed because he was denied a preliminary hearing; or, alternatively, (2) his conviction on count IV of the information must be vacated because it violates the one-act-one-crime principle. For the reasons that follow, we reverse defendant's convictions and remand his cause for further proceedings.

On July 20, 1994, a grand jury returned a two-count indictment against defendant. Count I of the indictment alleged that on November 23, 1993, defendant committed a hate crime by committing an assault (720 ILCS 5/12--1 (West 1992)) against S.A. by reason of her race. Count I further alleged that defendant committed the assault by pointing his finger at S.A. and threatening to kill her. Count II of the indictment alleged that on October 24, 1993, defendant committed a hate crime by committing disorderly conduct (720 ILCS 5/26--1(a)(1) (West 1992)) by reason of S.A.'s race. Specifically, count II alleged that defendant grabbed his genitals and told S.A. to place her mouth on his penis.

On January 22, 1996, the parties informed the court that they were ready for trial. On the same day, defendant waived his right to a jury. The trial court continued the case for a bench trial to commence the following day.

On January 23, 1996, the trial court called defendant's cause for trial. At this point, the State requested leave to dismiss the two-count indictment and file a seven-count information. Defendant objected to the State's motion and asked that the case proceed to trial on the two-count indictment. Defendant argued that the information charged different offenses than the indictment, entitling him to a preliminary hearing. The State argued that the information merely charged the same offenses in different ways and that no preliminary hearing was necessary.

The trial court granted the State's motion. The trial court ruled that section 109--3.1(b)(2) of the Code of Criminal Procedure of 1963 (the Code) (725 ILCS 5/109--3.1(b)(2) (West 1992)) allowed the State to file the information without affording defendant a preliminary hearing because the charges of the information arose out of the same transaction or conduct which provided the basis for the earlier indictment.

The State's seven-count information contained three counts (counts V, VI, and VII) which charged crimes other than hate crimes. Defendant moved for dismissal of these counts on the ground that they were charged beyond the statute of limitations for misdemeanors. The trial court granted defendant's motion to dismiss.

The remaining four counts of the information alleged defendant committed hate crimes on October 23 and November 23, 1993. Counts I and II contained the same allegations as the earlier two-count indictment except that count I stated the October offense and count II stated the November offense. In addition, the date for the October offense was changed from October 24 to October 23. Count III alleged that on November 23, 1993, defendant committed a hate crime by committing disorderly conduct (720 ILCS 5/26--1(a)(1) (West 1992)) by reason of S.A.'s race. In particular, count III alleged defendant pointed his finger at S.A. and threatened to kill her in such an unreasonable manner as to alarm and disturb S.A. and provoke a breach of the peace. Count IV alleged that on November 23, 1993, defendant committed a hate crime by committing disorderly conduct (720 ILCS 5/26--1(a)(5) (West 1992)) by reason of S.A.'s race. Specifically, count IV alleged that defendant entered upon the property of S.A., deliberately looked in her window, pointed his finger at her and threatened to kill her in such an unreasonable manner as to alarm and disturb S.A. and provoke a breach of the peace.

The matter then proceeded to trial on the remaining four counts of the information. The trial court found defendant guilty on all four counts. The trial court vacated defendant's conviction on count III, ruling that count III was based on the same conduct as count II. Subsequently, defendant filed a motion in arrest of judgment contending that the trial court erred in allowing his trial to proceed without affording him a preliminary hearing. The trial court denied defendant's motion.

On appeal, defendant contends the trial court erred by allowing the State to dismiss a two-count indictment and file a seven-count information immediately before trial without affording him a preliminary hearing.

In Illinois, all felony prosecutions must be charged either by information or by indictment. 725 ILCS 5/111--2(a) (West 1992). If the State charges a felony by information, the accused is entitled to a preliminary hearing to determine whether probable cause exists to ...


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