Court: Appellate Court of Illinois; July 16, 1992; Illinois; State Appellate Court
Defendant was charged with six counts of aggravated criminal sexual abuse in McLean County case No. 91.CF—7. During the trial, which began on November 6, 1991, the State rested its case. On November 7, the prosecutor, Mr. Reynard, informed the court of discussions with defense counsel, Mr. Skelton, regarding a resolution that would involve nolle prosequi of the current charges in exchange for additional counts to be filed later. Judge Townley stated he would not allow the filing of new counts during the ongoing trial but would accept a nolle and proceed with the next case on the calendar. Mr. Skelton indicated that the defense was waiving any double jeopardy claims related to this case. Judge Townley clarified that he would not grant a mistrial as the case was actively being tried, and jeopardy had attached. Mr. Reynard later renewed his request to file additional counts, citing concerns about potential future issues related to jeopardy; however, Judge Townley denied this request, emphasizing that the trial was ready to proceed with the existing charges.
A nolle prosequi was filed by the prosecution, leading the court to declare a mistrial and excuse the jury from service. Subsequently, the State filed new misdemeanor charges against the defendant in McLean County case No. 90—CM. 1990, following a plea agreement. The defendant replaced his attorney and declined to plead guilty, prompting the State to convene a grand jury that indicted him on six counts of aggravated criminal sexual abuse, registered as No. 91. CF—7. The defendant pleaded not guilty and sought to dismiss these charges, arguing that proceeding would violate double jeopardy principles due to the prior mistrial.
The trial court dismissed the charges in No. 91. CF—7, concluding that the State's discretionary nolle prosequi without manifest necessity improperly terminated the previous trial in No. 89—CF. 691, entitling the defendant to discharge in the new case. The document discusses the competing arguments regarding whether a case belongs to the parties or the trial judge, and whether the judge has the authority to refuse a plea or additional charges. It emphasizes that the core issues for appellate review are whether the defendant would face double jeopardy by being tried in No. 91. CF—7 for charges that were nol-prossed in No. 89—CF. 691, and whether he waived these protections during the earlier trial.
The right to be free from double jeopardy is established by the U.S. Constitution (Fifth Amendment, applied to the states via the Fourteenth Amendment), the Illinois Constitution (Article I, Section 10), and Illinois statutory law, which prohibits retrial for the same offense if the earlier prosecution was improperly terminated after jeopardy had attached. The legal principle underscores the importance of protecting individuals from repeated prosecutions, which can cause undue distress and financial burden, highlighting the State's responsibility not to subject defendants to repeated attempts at conviction.
The double jeopardy clause protects an accused from being tried for the same offense after jeopardy has attached, which occurs when a jury is empaneled and sworn. Jeopardy must be allowed to conclude unless the defendant consents to a mistrial or if the trial court declares it necessary due to circumstances that prevent a fair trial—known as "manifest necessity." Examples include a hung jury or an improper indictment. If a mistrial is declared due to manifest necessity, the defendant cannot invoke double jeopardy to prevent a retrial.
In this case, the court concluded that the mistrial declared by the judge was not based on manifest necessity, as the prosecution's decision to nolle prosequi was a calculated choice rather than a response to uncontrollable circumstances. The defendant did not object to this motion, which typically indicates consent to the termination of the trial, thus waiving the right to a trial by a specific tribunal. The prosecution's nolle prosequi must be respected unless it is part of a vexatious pattern, which was not applicable here. Generally, if charges are nolle prossed after jeopardy has attached, the prosecution cannot refile those charges.
A nolle prosequi by the prosecution after jeopardy has attached is deemed an improper termination of a proceeding, preventing further reprosecution, as stated in the committee comments to section 3.4 of the Illinois statute. Dismissal of charges can occur if the defendant pleads guilty to other charges. In *People v. McCutcheon* (1977), a felony count was nol-prossed to allow a negotiated plea to a misdemeanor, which was later vacated, enabling the State to reinstate the felony count based on the argument that jeopardy never attached to the vacated misdemeanor. The State referenced three federal cases where defendants entered plea agreements after trials began, but those cases involved accepted agreements and court inquiries about them, which did not occur in the present case. The trial court did not accept any plea agreement nor inquire about its terms, making it unclear if the defendant solely repudiated the agreement. The trial judge informed the defendant that jeopardy had attached and that the waiver of jeopardy announced by counsel was ineffective. Supreme Court Rule 402 mandates that a defendant must understand the nature of the charge, sentencing implications, rights to plead not guilty, and the consequences of a guilty plea. This procedure was not followed, and thus enforcing an unrecorded plea agreement without proper admonitions would undermine Rule 402. The State argued that the defendant waived double jeopardy claims, citing *Johnson v. Zerbst* and *Ricketts v. Adamson*, where the latter involved a waiver embedded in a signed plea agreement. However, the circumstances in the present case differ, as no such waiver or agreement was properly established.
The absence of formality and clarity in the waiver is highlighted, contrasting it with the case of Ricketts, where the defendant explicitly acknowledged the consequences of failing to meet his agreement. The judge's remarks during trial indicated skepticism about the effectiveness of any waiver, likely influencing the defendant's understanding and response to it. Courts maintain a strong presumption against the waiver of fundamental constitutional rights and do not assume acquiescence in their loss. Given these principles and the specifics of this case, it is determined that the defendant did not waive his right against double jeopardy, particularly as the circumstances suggest he may not have fully understood the implications of his actions. Consequently, the judgment of the circuit court is affirmed, with Justices Knecht and Lund concurring.
