Appeal from the Circuit Court of McHenry County. No. 97--CF--1054 Honorable Ward S. Arnold, Judge, Presiding.
The opinion of the court was delivered by: Presiding Justice Bowman
Defendant, Edward Fako, was ticketed for, among other things, the misdemeanor offense of driving while his driver's license was revoked (625 ILCS 5/6--303(a) (West 1998)). Before defendant's scheduled court date, the State dismissed the misdemeanor charge and indicted defendant for the felony offense of driving while his license was revoked (625 ILCS 5/6--303(d) (West 1998)). On defendant's scheduled court date, defendant, who was unaware of the indictment and the dismissal, pled guilty in municipal court to the lesser offense of driving without a valid driver's license (625 ILCS 5/6--101(b) (West 1998)). Defendant was fined $250 and given court supervision. After defendant was made aware of the indictment, he filed a motion to dismiss the indictment, arguing that double jeopardy precluded the State from seeking to convict him of the felony charge. The trial court denied the motion. Defendant appeals, arguing that double jeopardy precludes the State from prosecuting him for the felony offense and that the trial court erred in refusing to enforce the plea agreement into which he and the municipal prosecutor entered. We affirm.
Around August 30, 1993, McHenry County State's Attorney Gary Pack sent a letter to Colin MacMeekin, who was a prosecuting attorney for the City of McHenry. In this letter, Pack told MacMeekin that the municipal prosecutors of the City of McHenry had the authority to prosecute state violations, such as driving while license revoked, that occurred within the city limits of McHenry. The letter further stated that, unless Pack heard from MacMeekin in writing that MacMeekin was not prosecuting a particular state charge, Pack would assume that the municipal prosecutors would prosecute the specified state violations, including driving while license revoked.
On July 31, 1997, defendant was arrested for the misdemeanor of driving while his driver's license was revoked. Defendant was also ticketed for other offenses, but those offenses are unknown from the record. Because of these violations, defendant was scheduled to appear in the municipal court on August 25, 1997.
On August 21, 1997, before defendant appeared in the municipal court to dispose of his tickets, the McHenry County State's Attorney's office decided to indict defendant for the felony of driving while his license was revoked. As part of this indictment, defendant's misdemeanor ticket for driving while his license was revoked was dismissed, and the other tickets he was issued were joined with his felony indictment.
On August 25, 1997, defendant appeared in the municipal court to dispose of the tickets he was issued on July 31, 1997. Allegedly, pursuant to negotiations between defendant's attorney and the municipal prosecutor, defendant pled guilty to driving without a valid driver's license, was fined $250, and was given court supervision until February 23, 1998. The order provided that defendant did not need to appear in court on February 23, 1998, if he paid the $250 fine before this date. According to the record, neither defendant nor the municipal prosecutor knew that the McHenry County State's Attorney's office had dismissed his misdemeanor ticket for driving while his license was revoked and that defendant had been indicted for the felony of driving while his license was revoked.
On December 2, 1998, defendant filed a motion to dismiss the indictment, arguing that prosecuting him for the felony would amount to double jeopardy. On December 24, 1998, a hearing was held on defendant's motion, and the trial court denied the motion, stating that double jeopardy did not attach. The trial court stated that the acts of the municipal prosecutors would normally bind the State's Attorney's office, but the municipal prosecutor's actions did not bind the McHenry County State's Attorney's office here because when the municipal prosecutor negotiated the plea with defendant no charge was pending. Thus, double jeopardy could not attach when there is no charge pending to which defendant could plead guilty.
On January 8, 1999, defendant filed a motion to enforce the plea agreement, and, soon afterwards, defendant also filed a motion to reconsider the trial court's order denying his motion to dismiss the indictment. A hearing was held on the motions, and the trial court denied both motions. In making its ruling, the trial court stated that defendant's double jeopardy argument would have prevailed if defendant had pled guilty to the charge before the State dismissed the misdemeanor charge of driving while his license was revoked. This timely appeal followed.
The issue presented in this cause is whether or not double jeopardy attaches when a defendant pleads guilty to a charge in the municipal court after the McHenry County State's Attorney's office dismisses the charge. Neither of the briefs addressed a case that was factually on point, and our own research did not uncover any cases from Illinois that resolved this issue. However, we do find an out-of-state case (People v. Carter, 134 Misc. 2d 878, 513 N.Y.S.2d 331 (1987)) instructive.
In Carter, the defendant pled guilty to a misdemeanor count of possessing a controlled substance, and he was sentenced. Carter, 134 Misc. 2d at ___, 513 N.Y.S.2d at 333. However, four days before the defendant pled guilty to the misdemeanor charge, the defendant was indicted for 14 counts of various narcotics offenses. Carter, 134 Misc. 2d at ___, 513 N.Y.S.2d at 333. At the time the defendant pled guilty to the misdemeanor charge, the prosecutor did not know that the defendant had been indicted. Carter, 134 Misc. 2d at ___, 513 N.Y.S.2d at 332. The trial court vacated the misdemeanor plea and sentence, and defendant argued that he could not be prosecuted on the 14-count indictment because double jeopardy had attached when he pled guilty to the misdemeanor charge. Carter, 134 Misc. 2d at ___, 513 N.Y.S.2d at 333.
The reviewing court concluded that the State was not precluded from prosecuting the defendant on the felony indictment. Carter, 134 Misc. 2d at ___, 513 N.Y.S.2d at 335. The reviewing court reasoned that double jeopardy had not attached because the trial court had no jurisdiction over the misdemeanor charge once the defendant was indicted. Carter, 134 Misc. 2d at ___, 513 N.Y.S.2d at 334. This conclusion was based on a state statute that provided that the criminal courts were to be divested of jurisdiction once an indictment was filed. Carter, 134 Misc. 2d at ___, 513 N.Y.S.2d at 334. The reviewing court also noted that double jeopardy had not attached because the state statute on double jeopardy provides that double jeopardy cannot attach when a defendant is prosecuted in a court that lacks jurisdiction over the defendant or the offense. Carter, 134 Misc. 2d at ___, 513 N.Y.S.2d at 335.
Here, as in Carter, double jeopardy did not attach because the municipal court did not have jurisdiction over the misdemeanor offense to which defendant pled guilty in the negotiated plea agreement. Specifically, in Illinois, section 3--4(d)(1) of the Criminal Code of 1961 (720 ILCS 5/3--4(d)(1) (West 1998)) provides as follows:
"[A] prosecution is not barred within the meaning of [the double jeopardy statute] if ...