People v. Harkness

Decision Date04 November 1975
Docket NumberNo. 61191,61191
Citation34 Ill.App.3d 1,339 N.E.2d 545
PartiesPEOPLE of the State of Illinois, Plaintiff-Appellee, v. William HARKNESS, a/k/a Lutrel Porter, Defendant-Appellant.
CourtUnited States Appellate Court of Illinois

James J. Doherty, Public Defender, Chicago (Ira Churgin, Asst. Public Defender, of counsel), for defendant-appellant.

Bernard Carey, State's Atty., Chicago (Laurence J. Bolon, Linda Ann Miller, Paul B. Linton, Iris E. Sholder, Asst. State's Attys., of counsel), for plaintiff-appellee.

DOWNING, Presiding Justice:

William Harkness, defendant, appeals from an order of the circuit court of Cook County revoking his probation and a sentence of one year to one year and a day.

The only issue presented for review is whether a finding of no probable cause at a preliminary hearing bars a subsequent probation revocation based on evidence as to the same offense.

On July 9, 1973 defendant entered a plea of guilty to an information charging him with the crime of theft. (Ill.Rev.Stat.1973, ch. 38, par. 16--1.) He was sentenced to a term of one year's probation. On June 4, 1974 a rule to show cause why defendant's probation should not be revoked was filed. The rule alleged that, after being placed on probation, defendant had committed the crime of burglary and pled guilty to criminal trespass to vehicle.

On July 9, 1974 a hearing was held on the rule to show cause. At the hearing, defendant made a motion to dismiss based on the fact that the burglary charge at issue had been dismissed at a preliminary hearing after a finding of no probable cause had been made. Defendant's motion was denied and the hearing proceeded. No evidence was introduced as to the charge of criminal trespass of the vehicle in which defendant had been arrested, to which charge the rule to show cause alleged defendant had pled guilty. Neither party refers to this charge as having provided any basis for the probation revocation and we thus assume it did not so provide. The sufficiency of the evidence adduced at the hearing on the rule to show cause is not challenged on appeal and a recitation of the testimony adduced is thus unnecessary. At the conclusion of the hearing, defendant's probation was revoked and he was sentenced to a term of one year to one year and a day.

Defendant's argument on appeal is that the State was barred from using the burglary charge as a basis for revoking his probation since there had been a finding of no probable cause as to that charge at a preliminary hearing. In support of this argument, defendant relies upon People v. Grayson (1974), 58 Ill.2d 260, 319 N.E.2d 43. In Grayson, the Illinois Supreme Court held that where a defendant is acquitted of a charge at a criminal trial, collateral estoppel precludes a subsequent revocation of probation based on the same charge. The court held:

'(T)he principle of collateral estoppel applies in the circumstances present here. The acquittal of defendant on the charge of armed robbery was, under the evidence in this case, a determination that he was not on of the robbers. Once the Ultimate and only disputed fact of identify had been determined by A final and valid judgment, the State could not constitutionally hale defendant before a new court in a criminal proceeding or a probation revocation proceeding and litigate that issue again.' 58 Ill.2d at 265, 319 N.E.2d at 46. (Emphasis added.)

In the case at bar, unlike Grayson, the defendant was not acquitted on the charge of burglary, since a finding of no probable cause is neither a conviction nor an acquittal. (People v....

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5 cases
  • People v. Huff
    • United States
    • United States Appellate Court of Illinois
    • December 9, 1976
    ... ...         We followed Kostaken in People v. Brooks (1966) (Abstract), 67 Ill.App.2d 479, 214 N.E.2d 498. The rule as set forth in Kostaken has been uniformly followed in other cases. (People v. Harkness (1975), 34 Ill.App.3d 1, 339 N.E.2d 545; People v. Yarbar (1973), 14 Ill.App.3d 267, 302 N.E.2d 442; People v. Ballard (1971), 133 Ill.App.2d 303, 273 N.E.2d 194; People v. Ramirez (1970), 131 Ill.App.2d 268, 266 N.E.2d 520; People v. Smith (1969), 105 Ill.App.2d 14, 245 N.E.2d 13.) Other ... ...
  • People v. Kondo
    • United States
    • United States Appellate Court of Illinois
    • August 4, 1977
    ...determined on its merits at the prior probation revocation hearing. The State's reliance in this regard upon People v. Harkness, 34 Ill.App.3d 1, 339 N.E.2d 545, is misplaced. In Harkness, the court held that a prior finding of no probable cause at a preliminary hearing does not bar a subse......
  • Gilbert v. Braniff Intern. Corp.
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • June 19, 1978
    ...477, 60 L.Ed. 868 (1916); Premier Electrical Construction Co. v. Miller-Davis Co., 422 F.2d 1132 (7th Cir. 1970); People v. Harkness, 34 Ill.App.3d 1, 339 N.E.2d 545 (1975). Further, an order is considered final if it terminates the litigation between the parties to the suit, and finally de......
  • People v. Newell
    • United States
    • United States Appellate Court of Illinois
    • March 25, 1982
    ... ... (People v. Huff (1976), 44 Ill.App.3d 273, 2 Ill.Dec. 937, 357 N.E.2d 1380; People v. Harkness (1975), 34 Ill.App.3d 1, 339 N.E.2d 545.) The supreme court has held, however, that under the ... [61 Ill.Dec. 201] principle of collateral estoppel the State is barred [105 Ill.App.3d 335] from proceeding on a probation revocation where defendant was acquitted of the same charge. People v ... ...
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