People v. Oswald, s. 81-557

• Court: United States Appellate Court of Illinois
• Writing for the Court: SEIDENFELD
• Citation: 435 N.E.2d 1369,62 Ill.Dec. 397,106 Ill.App.3d 645
• Parties: , 62 Ill.Dec. 397 PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Donald M. OSWALD and Timothy E. Barry, Defendants-Appellees.
• Docket Number: Nos. 81-557,81-560,s. 81-557
• Decision Date: 20 May 1982

Page 1369

435 N.E.2d 1369 106 Ill.App.3d 645, 62 Ill.Dec. 397 PEOPLE of the State of Illinois, Plaintiff-Appellant,
v.
Donald M. OSWALD and Timothy E. Barry, Defendants-Appellees. Nos. 81-557, 81-560. Appellate Court of Illinois, Second District. May 20, 1982.

[106 Ill.App.3d 646]

Page 1370

[62 Ill.Dec. 398] J. Michael Fitzsimmons, State's Atty., Barbara A. Preiner, Asst. State's Atty., Wheaton, Phyllis J. Perko, Nancie S. Hudell, State Attys. Appellate Service Commission, Elgin, for plaintiff-appellant.

Frank Wesolowski, Jr., Public Defender, Robert H. Heise, Asst. Public Defender, Wheaton, for defendants-appellees.

SEIDENFELD, Presiding Justice:

In consolidated cases, the State seeks to appeal from orders granting supervision to Donald M. Oswald upon his plea of guilty to battery (81-557), to Timothy E. Barry upon his plea of guilty to criminal trespass to land (81-560), and terminating supervision instanter in each case. Defendant Barry was also fined $25. The State contends that an order granting supervision and terminating it instanter is in effect a dismissal, permitting appeal under Supreme Court Rule 604(a)(1) (73 Ill.2d R. 604(a)(1)); and on the merits argues that the dispositions are unauthorized by law.

Defendants first argue that the State cannot appeal because the termination of court supervision is an acquittal from which an appeal is barred by the Illinois Constitution; that an appeal would subject the defendants to double jeopardy; that the imposition of supervision is a sentence from which the State may not appeal under Supreme Court Rule 604(a)(1); and, that the State has waived its right to appeal.

Initially we reject defendants' argument that the orders were acquittals. Under the Illinois Constitution there can be no appeal from a judgment of acquittal after a trial on the merits. (Article VI, section 6 Illinois Constitution of 1970.) However, an acquittal occurs only when " 'the ruling of the judge, whatever its label, actually represents the resolution (in the defendant's [106 Ill.App.3d 647] favor), correct or not, of some or all of the factual elements of the offense charged.' " People v. Wallerstedt, 77 Ill.App.3d 677, 680, 33 Ill.Dec. 179, 396 N.E.2d 568 (1979).

The orders dismissing the charges against the defendants were not "judgments

Page 1371

[62 Ill.Dec. 399] of acquittal." The trial judge in fact found both defendants guilty as charged and as admitted by the guilty pleas. None of the factual elements of the offenses charged were resolved in the defendants' favor. They were discharged on grounds unrelated to their guilt and despite the evidence of their guilt. Such a dismissal of the charges is not a judgment of acquittal. People v. Jones, 75 Ill.App.3d 945, 947-48, 31 Ill.Dec. 65, 393 N.E.2d 1372 (1979); see, also, United States ex rel. Rock v. Pinkey, 430 F.Supp. 176, 181-82 (N.D.Ill.1977); aff'd. without op., 582 F.2d 1282 (7th Cir. 1978).

Our opinion in People v. Tarkowski, 100 Ill.App.3d 153, 55 Ill.Dec. 485, 426 N.E.2d 631 (1981), on which defendants rely, does not indicate a different result. In Tarkowski, the defendant sought to appeal an order of court supervision and an order terminating the supervision after he had paid fines arising from his arrest for toll evasion, resisting a peace officer, and failing to surrender his driver's license. We held that the defendant could not appeal as the order terminating supervision was without adjudication of guilt, and thus a ruling in defendant's favor (Ill.Rev.Stat.1979, ch. 38, par. 1005-6-3.1(f)); therefore, the appeal was moot as to the defendant. (100 Ill.App.3d 153, 161, 55 Ill.Dec. 485, 426 N.E.2d 631). The defendants' reliance upon the dictum in Tarkowski that the discharge of the defendant from supervision is "akin to a judgment of acquittal * * * " (100 Ill.App.3d 153, 161, 55 Ill.Dec. 485, 426 N.E.2d 631) is misplaced. The similarity lies in the fact that an appeal by a defendant who is acquitted would also be moot. Tarkowski does not hold that an order dismissing charges against a defendant is a judgment of acquittal for purposes of appeal, and for the reasons given above, we will not so hold here. The appeals here are not moot as to the State and are not barred by Article VI, Section 6 of our Constitution.

We also conclude that the State's appeal does not violate the double jeopardy clauses of the United States and Illinois Constitutions. (U.S.Const.amend. V; Ill.Const. (1970) art. I, par. 10.) The United States Supreme Court has held that an appeal by the government from a dismissal of an indictment (there, on grounds of prejudicial delay) following a jury verdict of guilty is not barred on double jeopardy grounds. (United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975).) In Wilson, the Supreme Court noted that "the constitutional protection against Government appeals attaches only where there is a danger of subjecting the defendant to a second trial for the same offense * * * " (420 U.S. 332, 336, 95 S.Ct. 1013, 1018, 43 L.Ed.2d 232, 237), and that correcting the ruling of law discharging the defendant after the entry of a guilty verdict is permissible, because

"(a)lthough review of any ruling of law discharging a...