{ "id": 3106481, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JIMMY L. CREEK, Appellant", "name_abbreviation": "People v. Creek", "decision_date": "1983-01-24", "docket_number": "No. 56221", "first_page": "526", "last_page": "534", "citations": [ { "type": "official", "cite": "94 Ill. 2d 526" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "69 Ill. 2d 44", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5455040 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ill-2d/69/0044-01" ] }, { "cite": "96 S. Ct. 1668", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "48 L. Ed. 2d 177", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "425 U.S. 936", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6234752, 6233542, 6235047, 6235655, 6233835, 6234447, 6234130, 6235957, 6235351, 6233274 ], "opinion_index": 0, "case_paths": [ "/us/425/0936-06", "/us/425/0936-02", "/us/425/0936-07", "/us/425/0936-09", "/us/425/0936-03", "/us/425/0936-05", "/us/425/0936-04", "/us/425/0936-10", "/us/425/0936-08", "/us/425/0936-01" ] }, { "cite": "61 Ill. 2d 524", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2965210 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/ill-2d/61/0524-01" ] }, { "cite": "397 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12054849 ], "weight": 3, "year": 1975, "opinion_index": 0, "case_paths": [ "/us/397/0436-01" ] }, { "cite": "76 Ill. 2d 577", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2983453 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/ill-2d/76/0577-01" ] }, { "cite": "398 Ill. 405", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2459986 ], "year": 1979, "pin_cites": [ { "page": "408" } ], "opinion_index": 0, "case_paths": [ "/ill/398/0405-01" ] }, { "cite": "101 S. 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App. 3d 133", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5554146 ], "year": 1955, "opinion_index": 0, "case_paths": [ "/ill-app-3d/83/0133-01" ] }, { "cite": "468 F.2d 837", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 247686 ], "year": 1959, "opinion_index": 0, "case_paths": [ "/f2d/468/0837-01" ] }, { "cite": "89 A.2d 277", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1972, "opinion_index": 0 }, { "cite": "20 N.J. Super. 39", "category": "reporters:state", "reporter": "N.J. Super.", "case_ids": [ 452056 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nj-super/20/0039-01" ] }, { "cite": "185 S.E.2d 94", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1952, "opinion_index": 0 }, { "cite": "124 Ga. App. 589", "category": "reporters:state", "reporter": "Ga. App.", "case_ids": [ 731725 ], "year": 1952, "opinion_index": 0, "case_paths": [ "/ga-app/124/0589-01" ] }, { "cite": "18 S.W.2d 327", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1971, "opinion_index": 0 }, { "cite": "179 Ark. 752", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8725447 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/ark/179/0752-01" ] }, { "cite": "83 Ariz. 40", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 615102 ], "weight": 2, "year": 1929, "opinion_index": 0, "case_paths": [ "/ariz/83/0040-01" ] }, { "cite": "83 N.M. 314", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5337196 ], "weight": 2, "year": 1957, "opinion_index": 0, "case_paths": [ "/nm/83/0314-01" ] }, { "cite": "99 L. Ed. 1122", "category": "reporters:federal", "reporter": "L. Ed.", "year": 1971, "opinion_index": 0 }, { "cite": "349 U.S. 322", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11335007 ], "weight": 2, "year": 1971, "opinion_index": 0, "case_paths": [ "/us/349/0322-01" ] }, { "cite": "303 Ill. App. 184", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3342610 ], "year": 1955, "opinion_index": 0, "case_paths": [ "/ill-app/303/0184-01" ] }, { "cite": "57 Ill. App. 3d 621", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3419868 ], "year": 1940, "opinion_index": 0, "case_paths": [ "/ill-app-3d/57/0621-01" ] }, { "cite": "6 Ill. App. 2d 310", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5141609 ], "year": 1978, "pin_cites": [ { "page": "314" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/6/0310-01" ] }, { "cite": "59 Ill. 2d 125", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2960454 ], "opinion_index": 0, "case_paths": [ "/ill-2d/59/0125-01" ] }, { "cite": "71 Ill. 2d 378", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5448453 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/ill-2d/71/0378-01" ] }, { "cite": "91 Ill. 2d 122", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3092064 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/ill-2d/91/0122-01" ] }, { "cite": "88 Ill. 2d 54", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3082539 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-2d/88/0054-01" ] }, { "cite": "91 Ill. App. 3d 429", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3147406 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/91/0429-01" ] } ], "analysis": { "cardinality": 758, "char_count": 13410, "ocr_confidence": 0.764, "pagerank": { "raw": 2.0596627450839314e-07, "percentile": 0.7563587684069611 }, "sha256": "0f9bb183d1c988c3341e863cba020d4877c1155a47fc0fb21ad85fc2478bd31a", "simhash": "1:d6a045b4ca31cda8", "word_count": 2168 }, "last_updated": "2023-07-14T19:43:04.311972+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JIMMY L. CREEK, Appellant." ], "opinions": [ { "text": "JUSTICE UNDERWOOD\ndelivered the opinion of the court:\nFollowing a jury trial in the circuit court of Madison County, Jimmy L. Creek, the defendant in this procedurally confused case, was convicted of reckless homicide and driving while under the influence of intoxicating liquor. He received sentences of one year\u2019s imprisonment and six months\u2019 imprisonment, respectively, on the two charges. The appellate court dismissed the appeal ultimately taken by defendant on the grounds that it was not timely filed, and we granted his petition for leave to appeal.\nOn November 19, 1978, defendant received a citation at the scene of a fatal accident for driving while intoxicated and improper lane usage. These charges were dismissed shortly thereafter on the motion of an assistant State\u2019s Attorney because the prosecutor was investigating the possibility of filing a felony charge. An information was then filed on December 19 charging defendant with reckless homicide. Defendant later appeared and pleaded not guilty, and at a January 12, 1979, preliminary hearing the trial court entered the following written order:\n\u201cThe above entitled cause having again come on for hearing pursuant to setting and notice for preliminary hearing, on motion of assistant state\u2019s attorney Stephanie Robbins, the above entitled cause is hereby dismissed with prejudice.\nDefendant\u2019s bond ordered discharged according to law.\nIt is so ordered.\u201d (Emphasis added.)\nThe signatures of the prosecutor and defense counsel appear immediately below the word \u201cApproved\u201d on this order.\nThirty-four days later, the Madison County grand jury indicted defendant for reckless homicide, and the charge of driving while intoxicated was also later reinstated. Defendant\u2019s motion to dismiss the reckless-homicide charge on double jeopardy grounds was denied, and he then filed a petition for habeas corpus which was also denied. Defendant was then tried on the consolidated driving-while-intoxicated and reckless-homicide charges while his habeas corpus appeal was in process. Following his conviction on May 9, 1980, defendant filed several post-trial motions urging the trial court to vacate the conviction or reconsider the sentences imposed. While those motions were pending in the trial court, the appellate court apparently was advised of defendant\u2019s convictions and determined on its own motion to review the effect of the earlier dismissal with prejudice. Although initially recognizing that this dismissal involved only the reckless-homicide charge, the opinion of the appellate court concludes by reversing \u201cthe judgment of the circuit court of Madison County.\u201d The driving-while-intoxicated and reckless-homicide charges had been tried as a consolidated case, and the appellate court reversal, which did not distinguish between the two charges, seems to have been treated as a reversal of both.\nApparently by sheer coincidence, the appellate court opinion (Creek v. Clark (1980), 91 Ill. App. 3d 429) was filed on the same day, November 26, upon which the Madison County circuit court denied the last of defendant\u2019s post-trial motions. This court subsequently granted leave to appeal and reversed the appellate court (Creek v. Clark (1981), 88 Ill. 2d 54), holding that the latter lacked jurisdiction to decide the case on its merits in light of defendant\u2019s failure to appeal from Ms conviction. Defendant then filed in the trial court a notice of appeal wMch, while filed witMn 30 days of our decision, was filed approximately a year after demal of defendant\u2019s post-trial motions. Noting tMs fact, the appellate court dismissed that appeal as untimely. We subsequently granted defendant\u2019s petition for leave to appeal from that dismissal and, following oral argument, requested both parties to submit additional briefs addressing the merits of the double jeopardy issue so that we could examine that issue as well as the propriety of the dismissal of the appeal.\nThe State urges that the appellate court properly dismissed defendant\u2019s appeal under our Rule 606 because he failed to file a timely notice of appeal. Under our Rule 606(b), notices of appeal \u201cmust be filed with the clerk of the circmt court within 30 days after the entry of the final judgment appealed from or if a motion directed against the judgment is timely filed, within 30 days after the entry of the order disposing of the motion.\u201d (73 Ill. 2d R. 606(b).) The judgment in tMs case became final on June 6, 1980, when defendant\u2019s sentence was imposed (see In re J.N. (1982), 91 Ill. 2d 122; People v. Allen (1978), 71 Ill. 2d 378; People v. Warship (1974), 59 Ill. 2d 125), and the last of defendant\u2019s post-trial motions was demed on November 26, 1980. Accordingly, under Rule 606(b) the time limit witMn wMch defendant would ordinarily be required to file his notice of appeal extended 30 days beyond that date.\nOn that same day, however, the appellate court opiMon erroneously reversing defendant\u2019s conviction (Creek v. Clark (1980), 91 Ill. App. 3d 429) was filed. Consequently, defendant had no adverse judgment from wMch he could appeal until tMs court reversed the appellate court\u2019s judgment on October 21, 1981. (Creek v. Clark (1981), 88 Ill. 2d 54.) Defendant promptly filed a notice of appeal following tMs court\u2019s ruling, and we believe that notice must be considered as timely. Although the appellate court\u2019s reversal of defendant\u2019s conviction proved to be erroneous, defendant justifiably relied on that decision. Indeed, he had no alternative. Defendant had a constitutionally granted right to appeal the judgment of the Madison County circuit court within 30 days from November 26, 1980, the date of the denial of his last post-trial motion. (Ill. Const. 1970, art. VI, sec. 6.) It is apparent that defendant would have exercised that right except for the fortuitous filing of the appellate court opinion reversing that judgment. While constitutionally guaranteed rights can be waived, nothing resembling a waiver is to be found here. In fact, dismissing this appeal as untimely when the sole reason for delay lies in judicial error might well violate the due process guarantees of both our own and the Federal constitutions. See U.S. Const., amend. XIV, sec. 1; Ill. Const. 1970, art. I, sec. 2; Ill. Const. 1970, art. VI, sec. 6.\nAs recognized by both parties, the dispositive issue in this cause is whether the State may dismiss a charge \u201cwith prejudice\u201d and subsequently prosecute the same defendant for the same offense, based on the same facts. Ballentine\u2019s Law Dictionary provides the following definition of a dismissal with prejudice:\n\u201cAn adjudication on the merits of the case, a final disposition of the controversy which bars the right to bring or maintain an action on the same claim or cause of action.\u201d (Ballentine\u2019s Law Dictionary 384 (2d ed. 1948).)\nSimilar definitions have appeared in numerous judicial opinions recognizing that the phrase \u201cwith prejudice\u201d has a well-established meaning within the legal profession, and we agree with the following observations of our own appellate court: \u201cThe term \u2018with prejudice\u2019 has a well-recognized legal import; it is the converse of the term \u2018without prejudice\u2019 and is as conclusive of the rights of the parties as if the suit had been prosecuted to a final prosecution adverse to the complainant.\u201d (Gonzalez v. Gonzalez (1955), 6 Ill. App. 2d 310, 314. See Keim v. Kalbfleisch (1978), 57 Ill. App. 3d 621; Bank of America v. Jorjorian (1940), 303 Ill. App. 184. Accord, Lawlor v. National Screen Service Corp. (1955), 349 U.S. 322, 99 L. Ed. 1122, 75 S. Ct. 865; Chalmers v. Hughes (1971), 83 N.M. 314, 491 P.2d 531; Cochise Hotels, Inc. v. Douglas Hotel Operating Co. (1957), 83 Ariz. 40, 316 P.2d 290; Union Indemnity Co. v. Benton County Lumber Co. (1929), 179 Ark. 752, 18 S.W.2d 327; Foundry Systems & Supply, Inc. v. Industry Development Corp. (1971), 124 Ga. App. 589, 185 S.E.2d 94; Mayflower Industries v. Thor Corp. (1952), 20 N.J. Super. 39, 89 A.2d 277; Gambocz v. Yelencsics (3rd Cir. 1972), 468 F.2d 837. See also 27 C.J.S. Dismissal & Nonsuit sec. 73 (1959).) While the phrase is not encountered in connection with criminal proceedings as frequently as it may be in civil matters, the meaning is the same regardless of the context. (See, e.g., People v. Newell (1980), 83 Ill. App. 3d 133; Spriggs v. United States (9th Cir. 1955), 225 F.2d 865.) Consequently, we consider the dismissal with prejudice of the initial information charging defendant with reckless homicide equivalent to a final adjudication on the merits of the case.\nIn light of our conclusion, defendant\u2019s conviction was improper for several reasons. The fifth amendment to the United States Constitution provides, \u201cnor shall any person be subject for the same offence to be twice put in jeopardy of life or limb\u201d (U.S. Const., amend. V), and this prohibition applies to State governments as well as the Federal government. (Illinois v. Vitale (1980), 447 U.S. 410, 65 L. Ed. 2d 228, 100 S. Ct. 2260; Benton v. Maryland (1969), 395 U.S. 784, 23 L. Ed. 2d 707, 89 S. Ct. 2056.) Our own constitution similarly provides that \u201c[n]o person shall be *** twice put in jeopardy for the same offense.\u201d (Ill. Const. 1970, art. I, sec. 10.) Both of these constitutional guarantees protect defendants from a second prosecution on the same charge following an acquittal. (North Carolina v. Pearce (1969), 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072; People v. Gray (1977), 69 Ill. 2d 44.) The State directs our attention to People v. Deems (1980), 81 Ill. 2d 384, cert. denied (1981), 450 U.S. 925, 67 L. Ed. 2d 355, 101 S. Ct. 1378, where this court held that the word \u201cacquittal\u201d carries no talismanic meaning. The farcical situation in Deems, however, bears no resemblance to this case. There the judicial action denominated by the judge as an acquittal bore none of its characteristics other than the label. Here the dismissal with prejudice appears to have been intended to be tantamount to an acquittal. The prosecutor\u2019s purposeful inclusion of the phrase \u201cwith prejudice\u201d in her motion to dismiss, coupled with the signed approval of both parties, indicates to us an intention to terminate the proceedings in defendant\u2019s favor in such a way as to bar further action. Defendant\u2019s subsequent conviction is accordingly constitutionally infirm.\nThe prosecutor\u2019s decision to seek an indictment for reckless homicide after dismissing with prejudice the information charging the same offense also contravenes Illinois statutory law. Section 3 \u2014 4(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 3 \u2014 4(a)) provides:\n\u201c(a) A prosecution is barred if the defendant was formerly prosecuted for the same offense, based upon the same facts, if such former prosecution:\n(1) Resulted in either a conviction or an acquittal or in a determination that the evidence was insufficient to warrant a conviction; ***.\u201d\nIn light of our conclusion that a dismissal with prejudice is equivalent to an acquittal, we consider the prohibition against subsequent prosecution in section 3 \u2014 4 applicable to the indictment here, and his conviction was thus barred.\nThere is a final basis for challenge. The judicially created rule of res judicata provides that \u201ca final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies, and, as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action.\u201d (People v. Kidd (1947), 398 Ill. 405, 408. See Hughey v. Industrial Com. (1979), 76 Ill. 2d 577. Cf. Ashe v. Swenson (1970), 397 U.S. 436, 25 L. Ed. 2d 469, 90 S. Ct. 1189; La Salle National Bank v. County Board of School Trustees (1975), 61 Ill. 2d 524, cert. denied (1976), 425 U.S. 936, 48 L. Ed. 2d 177, 96 S. Ct. 1668.) As earlier noted, the dismissal with prejudice of the initial reckless-homicide information had the same effect as a final adjudication on the merits, and is res judicata as to this indictment.\nAs we earlier pointed out, only the information for reckless homicide was dismissed with prejudice. There existed no similar bar to the prosecution of the charge of driving while intoxicated, a fact not discussed by the appellate court. Since the judgment on that charge is not subject to the same infirmity, it remains unaffected and the parties are entitled to its review on its merits. The appellate court\u2019s order dismissing defendant\u2019s appeal is accordingly reversed. The reckless-homicide and driving-while-intoxicated cases are severed. The reckless-homicide case is remanded to the circuit court of Madison County with directions to vacate defendant\u2019s conviction and sentence and dismiss the indictment. The drunken-driving case is remanded to the appellate court with directions to afford defendant a review on the merits.\nReversed and remanded, with directions.", "type": "majority", "author": "JUSTICE UNDERWOOD" } ], "attorneys": [ "Donald E. Groshong, of Groshong, Moorman & Fahrenkamp, Ltd., of East Alton, for appellant.", "Tyrone C. Fahner and Neil F. Hartigan, Attorneys General, of Springfield, and Donald W. Weber, State\u2019s Attorney, of Edwardsville (Martin N. Ashley and Stephen E. Norris, of the State\u2019s Attorneys Appellate Service Commission, of Mt. Vernon, of counsel), for appellee." ], "corrections": "", "head_matter": "(No. 56221.\nTHE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JIMMY L. CREEK, Appellant.\nOpinion filed January 24, 1983.\nRehearing denied April 8,1983.\nDonald E. Groshong, of Groshong, Moorman & Fahrenkamp, Ltd., of East Alton, for appellant.\nTyrone C. Fahner and Neil F. Hartigan, Attorneys General, of Springfield, and Donald W. Weber, State\u2019s Attorney, of Edwardsville (Martin N. Ashley and Stephen E. Norris, of the State\u2019s Attorneys Appellate Service Commission, of Mt. Vernon, of counsel), for appellee." }, "file_name": "0526-01", "first_page_order": 600, "last_page_order": 608 }