Appeal from Circuit Court of Champaign County No. 97DT244
The opinion of the court was delivered by: Garman, Justice
IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS
Honorable Michael Q. Jones, Judge Presiding.
Defendant David L. Hobbs was arrested in Champaign County on June 28, 1997, and charged with driving with a blood-alcohol concentration (BAC) of .10 or more (DUI) (625 ILCS 5/11-501(a)(West 1996)) and driving while his license was revoked (625 ILCS 5/6-303 (West 1996)). On October 8, 1997, a mistrial was declared after the jury deadlocked. A second trial on only the DUI charge was held on November 11, 1997. Again, a mistrial was declared because the jury was unable to reach a verdict. On November 13, 1997, defendant filed motions seeking (1) reconsideration of his motion for a directed verdict, (2) dismissal on the ground that there was a lack of manifest necessity for a mistrial and that retrial would violate double jeopardy principles, and (3) dismissal with prejudice on the ground that a third trial would violate his constitutional right to due process. The trial court denied his motions following a hearing on November 25, 1997. He appeals, arguing that the trial court erred when it denied his motion to dismiss and his due process rights would be violated by requiring him to stand trial a third time. We affirm.
I. APPELLATE JURISDICTION
Defendant's statement of jurisdiction asserts that he brings a timely interlocutory appeal pursuant to Supreme Court Rules 602, 603, and 604(f). 134 Ill. 2d Rs. 602, 603; 145 Ill. 2d R. 604(f). Rule 604(f) provides, "The defendant may appeal to the Appellate Court the denial of a motion to dismiss a criminal proceeding on grounds of former jeopardy." 145 Ill. 2d R. 604(f).At the Conclusion of the November 25, 1997, hearing, defendant indicated his intention to take an interlocutory appeal pursuant to Rule 604(f). The trial court asked, "What's the former jeopardy?" Defendant responded that the second mistrial was not justified by "manifest necessity." Thus, defendant claimed, this case presents an exception to the long-standing rule that the double jeopardy clauses of the United States and Illinois Constitutions (U.S. Const., amend. V ; Ill. Const. 1970, art. I, §10) do not bar reprosecution where jury deadlock results in a mistrial. See United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L. Ed. 165 (1824); Dreyer v. People, 188 Ill. 40, 58 N.E. 620 (1900). The trial court took the matter under advisement. Upon reconvening later in the day, the trial court entered a docket entry reflecting defendant's intention to take an interlocutory appeal under Rule 604(f), directed the clerk to file notice of appeal, appointed appellate counsel, and vacated the date set for the third trial, pending the outcome of this appeal.
The State argues that appellate jurisdiction is lacking, based on Richardson v. United States, 468 U.S. 317, 82 L. Ed. 2d 242, 104 S. Ct. 3081 (1984), in which the petitioner claimed that his retrial was barred by double jeopardy where the jury acquitted him of one charge but deadlocked on the remaining charges. The Supreme Court considered whether the court of appeals properly dismissed the appeal for lack of jurisdiction. Richardson, 468 U.S. at 318, 82 L. Ed. 2d at 246, 104 S. Ct. at 3082. Richardson involved a question of statutory interpretation--whether the trial court's denial of the petitioner's motion for judgment of acquittal based on the insufficiency of the evidence was a final judgment, appealable under Title 28, section 1291 of the United States Code, which states: "The courts of appeals *** shall have jurisdiction of appeals from all final decisions of the district courts of the United States, *** except where a direct review may be had in the Supreme Court." (Emphasis added.) 28 U.S.C. §1291 (1994).
The Supreme Court first held that, under the statute, the court of appeals did have jurisdiction to consider petitioner's appeal from the order of the district court denying his motion to dismiss. Richardson, 468 U.S. at 322, 82 L. Ed. 2d at 249, 104 S. Ct. at 3084. Noting that the appealability of a double jeopardy claim depends upon its being at least "colorable," and that frivolous claims of former jeopardy may be weeded out by summary procedures, the Supreme Court found petitioner's claim colorable and the order appealed from final for purposes of section 1291. Richardson, 468 U.S. at 322, 82 L. Ed. 2d at 249, 104 S. Ct. at 3084.
The Supreme Court then turned to the merits and held, "[T]he failure of the jury to reach a verdict is not an event which terminates jeopardy." Richardson, 468 U.S. at 325, 82 L. Ed. 2d at 251, 104 S. Ct. at 3086. Further, "Regardless of the sufficiency of the evidence at petitioner's first trial, he has no valid double jeopardy claim to prevent his retrial." Richardson, 468 U.S. at 326, 82 L. Ed. 2d at 251, 104 S. Ct. at 3086. In a footnote immediately following this statement, the Supreme Court said:
"It follows logically from our holding today that claims of double jeopardy such as petitioner's are no longer 'colorable' double jeopardy claims which may be appealed before final judgment. A colorable claim, of course, presupposes that there is some possible validity to a claim. [Citations.] Since no set of facts will support the assertion of a claim of double jeopardy like petitioner's in the future, there is no possibility that a defendant's double jeopardy rights will be violated by a new trial, and there is little need to interpose the delay of appellate review before a second trial can begin." Richardson, 468 U.S. at 326 n.6, 82 L. Ed. 2d at 251 n.6, 104 S. Ct. at 3086 n.6. This portion of the Richardson opinion is purely statutory interpretation, not constitutional interpretation that is binding on the states.
The State contends that, under Richardson:
"[T]he double jeopardy clause of the United States Constitution does not require appellate review of the sufficiency of the evidence in a trial which ends in mistrial due to jury deadlock because the original jeopardy continues through a subsequent retrial rather than terminating with an order of mistrial." The State is correct that the defendant is not constitutionally entitled to interlocutory review of his double jeopardy claim.
The question is, however, whether Rule 604(f) permits an Illinois defendant to take an interlocutory appeal of an order denying his motion to dismiss following a mistrial due to jury deadlock. Our research has revealed no Illinois cases in which Rule 604(f) has been interpreted, in light of Richardson, to preclude such an appeal. We have previously observed:
"Subject to certain exceptions, appellate courts are without jurisdiction to review judgments, orders, or decrees which are not final. [Citation.] A trial court's ruling denying a defendant's motion to dismiss criminal charges is not a final order or judgment, nor is it an interlocutory order appealable as a statutory exception." People v. Baptist, 284 Ill. App. 3d 382, 388, 672 N.E.2d 398, 402 (1996). Rule 604(f), however, creates just such an exception. Unlike the statute at issue in Richardson, which requires a final decision before an appeal may be taken, Rule 604(f) permits an interlocutory appeal of the denial of a motion to dismiss on grounds of former jeopardy. Paragraph (f) was added to Rule 604 in 1982 (87 Ill. 2d R. 604(f)) without explanation or comment. Since that time, appellate courts have repeatedly addressed such appeals without questioning their jurisdiction to do so. See People v. Schram, 283 Ill. App. 3d 1056, 1060-61, 672 N.E.2d 1237, 1240 (1996) (finding jurisdiction to review contentions concerning former jeopardy but not to address due process or other arguments); People v. Iozzo, 195 Ill. App. 3d 1078, 1084, 552 N.E.2d 1308, 1312 (1990) (finding jurisdiction over appeal); People v. Gathings, 128 Ill. App. 3d 475, 479, 470 N.E.2d 1260, 1263 (1984) (electing to exercise jurisdiction over speedy trial issue because it was coupled with double jeopardy claim over which court had jurisdiction pursuant to Rule 604(f)).
The State's argument is, essentially, that this court should utilize the Richardson court's Discussion of the constitutional issue of double jeopardy to place a judicial gloss on Rule 604(f): Rule 604(f) may be invoked only when the defendant's motion to dismiss on the grounds of "former jeopardy" is denied. According to Richardson, jeopardy does not terminate with the declaration of a mistrial based on jury deadlock. Thus, the defendant continues to be in jeopardy ...