U.S. ex rel. Woollums v. Greer

• Decision Date: 14 November 1983
• Docket Number: No. 82-2999,82-2999
• Parties: UNITED STATES of America ex rel. Lavada WOOLLUMS, Petitioner-Appellant, v. James GREER, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 918

728 F.2d 918

UNITED STATES of America ex rel. Lavada WOOLLUMS, Petitioner-Appellant, v. James GREER, Warden, Respondent-Appellee.

No. 82-2999.

United States Court of Appeals, Seventh Circuit.

Submitted Nov. 14, 1983. ^*

Decided Feb. 24, 1984.

Lavada Woollums, pro se.

Michael V. Accettura, Deputy Atty. Gen., Chicago, Ill., for respondent-appellee.

Before CUMMINGS, Chief Judge, and ESCHBACH and FLAUM, Circuit Judges.

ESCHBACH, Circuit Judge.

This appeal from the denial of petitioner Woollums' application for a writ of habeas corpus raises the issue whether Woollums' prosecution on an aggravated battery charge was barred by the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. We conclude that it was and therefore reverse the magistrate's judgment.

I.

On September 4, 1973, a Quincy attorney found Woollums, apparently intoxicated at the time, tampering with his automobile. The attorney returned to his office and solicited the help of several Quincy police officers. They returned to the scene and found Woollums. When questioned about his actions, Woollums falsely stated his brother-in-law owned the automobile. Upon being informed by the officer that the owner was standing beside him, Woollums struck the officer behind the ear. He then fled with the officer in hot pursuit; he stumbled and fell, and in the ensuing scuffle, kicked the officer.

On September 4, 1973, Woollums was issued a citation for violations of local ordinances prohibiting intoxication and interfering with an officer. The charges were made out on a Uniform Illinois Citation and Complaint Form. The box requiring a mandatory court appearance under Illinois Supreme Court Rule 551(f) was checked. Woollums did not sign the portion of the form waiving trial and consenting to the entry of an ex parte judgment as provided for in Rule 556(b).

On September 5, 1973, Woollums appeared in court and posted $100 cash bail; trial was set for September 26, 1973. When Woollums failed to appear in court on September 26, the following order was entered:

Defendant called three times, fails to appear and is found to be in default. Ex parte judgment is entered herein against the Defendant in the amount of $100.00. It is therefore ordered that the Defendant's cash bond heretofore posted by Defendant shall be applied in satisfaction of the judgment rendered herein. ¹

On April 2, 1975, Woollums was indicted on a charge of aggravated battery based upon the events of September 4, 1973. Following a jury trial held in November, 1977, he was found guilty; on December 10, 1977, he was sentenced to a prison term of three and one-third years to ten years. Woollums' conviction and sentence were affirmed, People v. Woollums, 63 Ill.App.3d 602, 20 Ill.Dec. 317, 379 N.E.2d 1385 (1978), and the Illinois Supreme Court denied leave to appeal. Woollums' amended petition for post-conviction relief was dismissed on August 13, 1979.

In his petition for a writ of habeas corpus, Woollums raised two claims which had been decided adversely to him by the Illinois Appellate Court: (1) his prosecution for and conviction of aggravated battery following the ex parte judgment on the ordinance violation of interfering with an officer violated the Double Jeopardy Clause of the United States Constitution; and (2) the delay of eighteen months between the September 4, 1973 incident and the April 2, 1975 indictment violated his due process rights.

The parties consented to entry of final judgment by a United States Magistrate pursuant to 28 U.S.C. Sec. 636(c). Following an evidentiary hearing and by order dated August 14, 1981, Magistrate Cohn dismissed Woollums' due process claim. ² By order dated October 28, 1982, Magistrate Cohn denied the petition in its entirety, concluding that Woollums' double jeopardy claim similarly lacked merit. The magistrate held there were no "multiple punishments" in Woollums' case: the forfeiture of the bail did not constitute criminal punishment. The magistrate further rejected Woollums' argument that interfering with an officer is a lesser included offense of aggravated battery. The magistrate reasoned that the ordinance requires proof that the person interfered with was a city officer or employee; the statute does not. Woollums appeals.

II.

The Fifth Amendment guarantee against double jeopardy, enforceable against the states through the Fourteenth Amendment, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), consists of three separate constitutional protections:

It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.

North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). This case implicates the latter two concerns. ³

The Illinois Appellate Court's opinion contains the following analysis of the nature and legal import of the trial court's order of September 26, 1973:

While the language of the court's order is not couched precisely in the words of the rule [Illinois Supreme Court Rule 556(c) ] and statute [Ill.Rev.Stat.1973, ch. 38, par. 110-8(g) ], its meaning is obvious. The bail was forfeited but the court did not order a verified complaint and warrant. The proceedings stopped short of prosecution. The court was premature in entering a judgment since under the statute 30 days must elapse from the forfeiture to the judgment, but the purported entry of judgment only reinforces what was the evident intent of the court: a civil judgment on the bond in lieu of criminal prosecution.

People v. Woollums, 63 Ill.App.3d at 606, 20 Ill.Dec. at 320, 379 N.E.2d at 1388. The state appellate court concluded that Woollums suffered only a monetary penalty for nonappearance, not punishment for the ordinance violation of interfering with an officer. ⁴ Id.

We do not believe that the meaning of the trial court's order is as obvious as the state appellate court deemed it to be. The unstated premise of that court's analysis, with which the magistrate was in accord, was that the ordinance violations were mandatory appearance offenses under Illinois Supreme Court Rule 551(f). Resolution of the issue whether Woollums was punished for the ordinance violations requires a more careful analysis of the applicable statutes and rules.

Illinois Supreme Court Rule 556(c) provides, in pertinent part, that:

If a defendant fails to appear on the date set for appearance, ... and a court appearance is required under Rule 551, bail or security shall be forfeited and the judge may order the filing of a verified complaint and issue a summons or warrant of arrest for the defendant.

Thus, Rule 556(c), governing the forfeiture of bail in a case in which a court appearance is required, does not provide for the entry of an ex parte judgment against the accused upon his failure to appear. Rather, a verified complaint may be filed and summons or warrant issued.

The statutorily mandated procedure for proceeding to judgment on a bail forfeiture is set forth in section 110-8(g) of the Illinois Code of Criminal Procedure:

If the accused does not comply with the conditions of the bail bond the court having jurisdiction shall enter an order declaring the bail to be forfeited. Notice of such order of forfeiture shall be mailed forthwith by the clerk of the court to the accused and his sureties at their last known address. If the accused does not appear and surrender to the court having jurisdiction within 30 days from the date of the forfeiture ... the court shall enter judgment for the State against the accused and his sureties for the amount of the bail and cost of the proceedings.

Ill.Rev.Stat. ch. 38, Sec. 110-8(g). Although forfeiture of bail does not release the defendant from prosecution, in practice, bail forfeiture often is accepted in lieu of a fine. ⁵ The judgment entered on a bail forfeiture is civil in nature; it constitutes monetary damages for the defendant's breach of his contract with the government.

Rule 556(b), governing cases in which a court appearance is not required under Rule 551, provides that the accused shall sign the portion of the complaint form consenting, upon failure to appear, to the entry of ex parte judgment and the application of cash bail to payment of the fine and costs assessed. The rule further provides that if the defendant does not appear, the court may enter an ex parte judgment against him assessing a fine and costs, in an amount not to exceed the cash bail, and apply the cash bail in payment thereof. An ex parte judgment under Rule 556(b) is not a judgment on a bail forfeiture; it is an assessment of a fine for the violation.

The September 26 order precisely tracked the language of Rule 556(b). However, neither the state appellate court nor the district court addressed the issue whether the ordinance violations were or were not mandatory appearance offenses. Under Rule 551(f), a court appearance is required "for violation of any municipal ordinance defining offenses comparable to those specified in subparagraphs (a), (b), and (d) of this Rule 551." Subparagraph (a) requires a court appearance for "all alleged violations of chapters 3, 5, 6, 8 and 9 of the Illinois Vehicle Code." Subparagraph (b) requires a court appearance for alleged violations of specified sections of the Illinois Vehicle Code, two of which govern "Fleeing or Attempting to Elude Police Officer" and "Transportation or Possession of Liquor or Drugs." Subparagraph (d) requires a court appearance for "any traffic offense which results in an accident causing injury to or the death of any person."

One might examine the incident and resulting charges and question the applicability of the procedures set forth in Rule 556 which govern traffic and conservation cases. We have uncovered no cases addressing the issue how comparable the...