Appeal from Circuit Court of Vermilion County No. 97TR12775 Honorable Gordon R. Stipp, Judge Presiding.
The opinion of the court was delivered by: Justice McCULLOUGH
On May 22, 1998, a jury found defendant Lawrence Carter guilty of driving with a suspended license (DWS) (625 ILCS 5/6-303 (West Supp. 1997)) and operating an uninsured vehicle (625 ILCS 5/3-707 (West 1996)). The jury acquitted defendant of illegal transportation of alcohol (625 ILCS 5/11-502 (West 1996)). On June 4, 1998, the trial court orally granted defendant an acquittal notwithstanding the verdict on the charge of DWS, with a written order to be drafted by defense counsel. On June 5, 1998, the trial court vacated the acquittal without signing the written order and ordered a new trial. The trial court found it had erred at trial in excluding evidence of defendant's suspended license. On June 8, 1998, defendant filed a motion to bar retrial as prohibited by the double jeopardy clauses of the state and federal constitutions (U.S. Const., amends. V, XIV; Ill. Const. 1970, art. I, §10). The trial Judge denied the motion. We affirm.
Around 8:30 p.m., on December 2, 1997, Danville police officer Nathan Howie stopped defendant. Howie knew defendant's license to be suspended. Defendant was not able to produce any identification or a valid insurance card. After Howie radioed the police department for more information, Carter was issued citations for DWS and operating an uninsured vehicle. Howie searched defendant's car upon arresting him and found an open beer can. He then issued defendant a citation for illegal transportation of alcohol.
On May 22, 1998, a jury trial was held. Howie's testimony related the details of the traffic stop and his knowledge of defendant's suspended license. During the trial, the State offered a certified transcript of a record of suspension from the Illinois Department of the Secretary of State indicating defendant's license was suspended when he was pulled over. In response to defense counsel's objection, the trial court excluded the transcript as hearsay. At the close of the State's case, defendant moved for a directed verdict on the DWS charge. The trial court rejected defendant's motion, concluding Howie's testimony provided some evidence to support the charge.
In an attempt to present a necessity defense, defendant and his stepbrother testified defendant has diabetes. Defendant testified he was driving himself to the hospital to receive an insulin injection when he was stopped by Howie. The trial court rejected defendant's necessity defense instruction. Again, the jury returned a verdict of not guilty on the count of illegal transportation of alcohol and guilty on the remaining counts.
On May 28, 1998, defendant filed a posttrial motion for acquittal notwithstanding the verdict or, in the alternative, a new trial. The motion raised several grounds, including that defendant was not proved guilty beyond a reasonable doubt of DWS. On June 4, 1998, the trial court granted defendant's motion for acquittal on this ground. The trial court's docket entry states:
"Judgment of acquittal is entered as to the charge of DAS [(driving after a license suspension)]. Written order to follow from [Public Defender] Scott Lerner."
A bystander's report of the June 4, 1998, hearing contains identical language. Lerner prepared an order finding defendant not guilty of DWS. This order was signed by the prosecutor, but not the Judge.
On June 5, 1998, the trial Judge stated the written order reasonably reflected his position the day before. However, the trial court sua sponte vacated the judgment of acquittal on the DWS charge and granted defendant's motion for a new trial. The Judge stated he granted the judgment notwithstanding the verdict because the only testimony of defendant's license suspension was the testimony of Howie, which had not been accepted for its truth, but only to establish probable cause for the stop.
The trial Judge concluded he had erred in excluding the transcript of the record of suspension. On appeal, defendant concedes this was error. The trial Judge stated he was reconsidering both this ruling and the ruling on the posttrial motion. The Judge stated, "I have no choice but to find that my error has caused substantial inequity to the State."
On June 8, 1998, defendant filed a motion to dismiss the DWS count because double jeopardy barred retrial. This motion was denied. The trial Judge stated the acquittal was subject to presentation of an acceptable final written order. Because he had not signed the order, he concluded the prior DWS conviction remained in effect. The court stated that, even had the order been approved, the court has "inherent authority to do manifest Justice to both of the parties and that would include a reconsideration of a ruling within the 30[-]day time period." Defendant seeks an immediate appeal of the trial court's order under Supreme Court Rule 604(f) (145 Ill. 2d R. 604(f)).
Defendant argues a new trial on the DWS charge is barred because of the June 4, 1998, docket entry acquitting him of the charge. The double jeopardy clause protects against a second prosecution for the same offense after an acquittal. United States v. Wilson, 420 U.S. 332, 342- 43, 43 L. Ed. 2d 232, 241, 95 S. Ct. 1013, 1021 (1975).
The trial court's actions in this case raise two double jeopardy issues: (1) whether the trial court could vacate its oral acquittal; and (2) assuming it could, whether it could then order a new trial. The State argues the June 4, 1998, acquittal was not effective because the trial Judge vacated it without signing defense counsel's proposed written order. At the post-trial motion on the double jeopardy issue, the trial court concluded the acquittal was tentative, dependent on submission of an acceptable written order. However, what constitutes an acquittal for purposes of the double jeopardy clause is not necessarily controlled by the form of the Judge's action or the label the Judge attaches to it. People v. Deems, 81 Ill. 2d 384, 388-89, 410 N.E.2d 8, 10 (1980).
The test for determining whether an acquittal occurred is whether the trial court's action "'actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.'" People ex rel. Daley v. Crilly, 108 Ill. 2d 301, 311, 483 N.E.2d 1236, 1241 (1985), quoting United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 51 L. Ed. 2d 642, 651, 97 S. Ct. 1349, 1355 (1977). The June 4, 1998, docket entry and bystander's report state unequivocally that defendant is acquitted of the DWS ...