{ "id": 2555590, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY ORTIZ, Defendant-Appellant", "name_abbreviation": "People v. Ortiz", "decision_date": "1990-11-20", "docket_number": "No. 3-89-0653", "first_page": "569", "last_page": "574", "citations": [ { "type": "official", "cite": "207 Ill. App. 3d 569" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "483 N.E.2d 1236", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "108 Ill. 2d 301", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3129386 ], "pin_cites": [ { "page": "312" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/108/0301-01" ] }, { "cite": "542 N.E.2d 468", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "186 Ill. App. 3d 316", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2654052 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/ill-app-3d/186/0316-01" ] }, { "cite": "322 N.E.2d 97", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "24 Ill. App. 3d 907", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5307134 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/24/0907-01" ] }, { "cite": "469 N.E.2d 580", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "103 Ill. 2d 216", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3152201 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ill-2d/103/0216-01" ] }, { "cite": "384 N.E.2d 902", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "67 Ill. App. 3d 490", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3311064 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/ill-app-3d/67/0490-01" ] }, { "cite": "474 N.E.2d 391", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "481 N.E.2d 888", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "pin_cites": [ { "page": "889-90" }, { "page": "892" } ], "opinion_index": 0 }, { "cite": "135 Ill. App. 3d 336", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3601396 ], "weight": 4, "pin_cites": [ { "page": "337-38" }, { "page": "341" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/135/0336-01" ] }, { "cite": "393 N.E.2d 1372", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "1375" } ], "opinion_index": 0 }, { "cite": "75 Ill. App. 3d 945", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3274681 ], "weight": 2, "pin_cites": [ { "page": "948-49" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/75/0945-01" ] }, { "cite": "391 N.E.2d 793", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "73 Ill. App. 3d 145", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3264272 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/73/0145-01" ] }, { "cite": "424 U.S. 600", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12027140 ], "weight": 2, "year": 1976, "pin_cites": [ { "page": "609" }, { "page": "611" } ], "opinion_index": 0, "case_paths": [ "/us/424/0600-01" ] }, { "cite": "437 U.S. 82", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6177769 ], "weight": 21, "pin_cites": [ { "page": "87" }, { "page": "71-72" }, { "page": "93" }, { "page": "76" }, { "page": "2195" }, { "page": "93-94" }, { "page": "76" }, { "page": "2195" }, { "page": "99-100" }, { "page": "79-80" }, { "page": "2198" }, { "page": "98" }, { "page": "78-79" }, { "page": "2197" }, { "page": "98" }, { "page": "78-79" }, { "page": "2197" } ], "opinion_index": 0, "case_paths": [ "/us/437/0082-01" ] }, { "cite": "410 N.E.2d 8", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1978, "pin_cites": [ { "page": "10" }, { "page": "11" } ], "opinion_index": 0 }, { "cite": "81 Ill. 2d 384", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5481175 ], "weight": 3, "year": 1978, "pin_cites": [ { "page": "388" }, { "page": "389" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/81/0384-01" ] } ], "analysis": { "cardinality": 664, "char_count": 12684, "ocr_confidence": 0.771, "pagerank": { "raw": 5.207966869300525e-08, "percentile": 0.3273916741864101 }, "sha256": "a1aa95a8bb2543e0d80581defc0839f29c4eafba490128b897a20b25eb208f3e", "simhash": "1:186a4454f9b3c544", "word_count": 2104 }, "last_updated": "2023-07-14T17:11:09.339704+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY ORTIZ, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE BARRY\ndelivered the opinion of the court:\nDefendant Anthony Ortiz was charged with two counts of aggravated criminal sexual abuse of his girlfriend\u2019s nine-year-old daughter. Defendant waived his right to a jury trial, and the prosecution proceeded as scheduled with its case in chief on April 24, 1989, before Whiteside County Circuit Judge Wilbur Johnson. At 11:45 a.m., midway through the State\u2019s direct examination of the child\u2019s mother, the prosecuting assistant State\u2019s Attorney informed the court that the victim was not available to testify because her father had confused the trial date and he could not have her at the courthouse for another 2xk hours. The prosecutor moved for a continuance to 2:30 p.m., and defense counsel moved for a dismissal. The court denied the State\u2019s motion and granted defendant\u2019s.\nOn April 27, 1989, the prosecutor moved the court to reconsider its ruling. The prosecutor emphasized that there were two other witnesses waiting outside the court room at the time she moved to continue the case. She admitted that she might have pursued her resistance to defendant\u2019s motion to dismiss more vigorously by bringing this fact to the court\u2019s attention or by proceeding with the witnesses\u2019 testimony when the court indicated its inclination to deny a continuance. Instead, the prosecutor had elected to stand on her motion. After reviewing the facts and hearing arguments of counsel, the court found that it had erred in denying the State\u2019s motion for a short continuance. The cause was reinstated and set for a trial on May 24, 1989, before Circuit Judge John Donald O\u2019Shea.\nAt the conclusion of this trial, defendant was found guilty as charged. He was sentenced to a four-year term of probation.\nIn this appeal, defendant raises a single issue \u2014 whether the trial court\u2019s dismissal on April 24, 1989, was an acquittal rendering the subsequent trial a violation of defendant\u2019s right not to be twice placed in jeopardy for the same offense. The State concedes that jeopardy attached at the April 24 proceedings, but argues that the court\u2019s dismissal is not tantamount to an acquittal because it was based on nonfactual grounds. Therefore, the State contends, the purpose of the doctrine of double jeopardy is not served by prohibiting the later prosecution.\nThe double jeopardy protection was recently reviewed by our supreme court in People v. Deems (1980), 81 Ill. 2d 384, 388, 410 N.E.2d 8, 10. The court there quoted United States v. Scott (1978), 437 U.S. 82, 87, 57 L. Ed. 2d 65, 71-72, 98 S. Ct. 2187, 2192:\n\u201c \u2018 \u201cThe underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.\u201d \u2019 \u201d\nThe court further observed that \u201c[t]he traditional rule is that jeopardy attaches in a bench trial when the first witness is sworn and the court begins to hear evidence.\u201d Deems, 81 Ill. 2d at 389, 410 N.E.2d at 11.\nThere is no question but that defendant here was twice placed in jeopardy for a single offense. We have reviewed the cases cited in support of the State\u2019s contention and find them inapposite.\nIn United States v. Scott, defendant moved before and during trial for dismissal of two counts of an indictment on the ground that he had been prejudiced by preindictment delay. Although the trial court did not grant the motion until the close of all evidence, the Supreme Court ruled that a subsequent prosecution would not offend the double jeopardy clause. The court deemed the defendant\u2019s motion a \u201cdeliberate election on his part to forgo his valued right to have his guilt or innocence determined before the first trier of fact.\u201d (Scott, 437 U.S. at 93, 57 L. Ed. 2d at 76, 98 S. Ct. at 2195.) The Court explained that when a defendant moves for a mistrial because of a judicial or prosecutorial error,\n\u201c \u2018[t]he important consideration, for purposes of the Double Jeopardy Clause, is that the defendant retain primary control over the course to be followed in the event of such error.\u2019 United States v. Dinitz, 424 U.S. 600, 609 (1976). But, \u2018[t]he Double Jeopardy Clause does protect a defendant against governmental actions intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions.\u2019 Id., at 611.\u201d (Scott, 437 U.S. at 93-94, 57 L. Ed. 2d at 76, 98 S. Ct. at 2195.)\nAccordingly, the Court ruled that defendant Scott suffered no injury cognizable under the double jeopardy clause and his reprosecution was a just consequence of his own voluntary choice. 437 U.S. at 99-100, 57 L. Ed. 2d at 79-80, 98 S. Ct. at 2198.\nSimilarly, in People v. Clauser (1979), 73 Ill. App. 3d 145, 391 N.E.2d 793, defendant moved midtrial to dismiss charges claiming a faulty indictment. Citing United States v. Scott, this court affirmed the trial court\u2019s denial of defendant\u2019s motion to dismiss his reindictment on double jeopardy grounds. We also remanded for reindictment Clauser\u2019s codefendant in People v. Jones (1979), 75 Ill. App. 3d 945, 948-49, 393 N.E.2d 1372, 1375. We reasoned that, inasmuch as Jones\u2019 case presented \u201ca mid-trial termination of criminal proceedings, initiated by the defendant and based upon facts unrelated to the accused\u2019s guilt or innocence,\u201d reprosecution would not offend the protection against double jeopardy.\nThe State analogizes defendants\u2019 motions for dismissal in Scott, Clauser and Jones to defendant\u2019s mid-trial motion here. The critical difference, of course, is that defendant\u2019s motion here was not predicated upon a procedural default, but upon the fact that the State did not have sufficient evidence, i.e., the testimony of the victim, at the first trial. Unlike the cases cited by the State, the dismissal here was, indeed, tantamount to an acquittal.\nIn People v. Bean (1985), 135 Ill. App. 3d 336, 481 N.E.2d 888, for example, defendant\u2019s prosecution for residential burglary proceeded to a jury trial on September 19, 1983. A jury was sworn and opening statements were presented. Then, at 2 p.m., the court granted the State\u2019s request for a recess because the victim and her daughter, an eyewitness to the crime, had not arrived at the courthouse. At 4 p.m., it became apparent that the witnesses would not be there in time to present their testimony, so the prosecuting attorney requested a further recess until 9 a.m. the following morning. At that time, the court suggested that since the State was not ready to proceed, a motion was in order. (135 Ill. App. 3d at 337-38, 481 N.E.2d at 889-90.) Defendant moved for a dismissal, and the State moved for a continuance. The court granted the former and denied the latter. The State appealed.\nOn appeal, the Bean court cited with approval People v. Holman (1985), 130.Ill. App. 3d 153, 474 N.E.2d 391. In Holman, as in Bean, the State had attempted to appeal from the circuit court\u2019s midtrial denial of the State\u2019s motion for a continuance. The Holman court ruled that retrial of a defendant was barred by double jeopardy principles whether proceedings were construed as an improper termination of a trial after a witness had testified or as an acquittal based upon the court\u2019s determination that evidence was insufficient to convict. The Bean court also distinguished those cases wherein the State had been allowed to appeal from a final disposition favorable to defendant where the basis for such disposition was known to the court before the case was called for trial or the case had for some other reason been improperly brought to trial. (E.g., People v. Dellecarto (1978), 67 Ill. App. 3d 490, 384 N.E.2d 902; People v. Rudi (1984), 103 Ill. 2d 216, 469 N.E.2d 580; People v. Deems (1980), 81 Ill. 2d 384, 410 N.E.2d 8.) In such cases, a midtrial \u201cdismissal for want of prosecution\u201d was appealable under section 114 \u2014 1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 114 \u2014 1).\nHaving ruled that the trial court\u2019s action in Bean was not truly a \u201cdismissal,\u201d the Bean court considered whether it was an \u201cacquittal,\u201d analyzing the facts under the criteria set forth in United States v. Scott (1978), 437 U.S. 82, 98, 57 L. Ed. 2d 65, 78-79, 98 S. Ct. 2187, 2197, cited in People v. Jones (1979), 75 Ill. App. 3d 945, 393 N.E.2d 1372. Quoting from Scott, the court stated:\n\u201c \u2018[A] defendant is acquitted only when \u201cthe ruling of the judge, whatever its label, actually represents a resolution [in the defendant\u2019s favor], correct or not, of some or all of the factual elements of the offense charged\u201d [citations]. Where the court, before the jury returns a verdict, enters a judgment of acquittal ***, appeal will be barred only when it is plain that the District Court *** evaluated the Government\u2019s evidence and determined that it was legally insufficient to sustain a conviction.\u2019 \u201d People v. Bean (1985), 135 Ill. App. 3d 336, 341, 481 N.E.2d 888, 892, quoting United States v. Scott (1978), 437 U.S. 82, 98, 57 L. Ed. 2d 65, 78-79, 98 S. Ct. 2187, 2197.\nAlthough the circuit court in Bean made no express finding that the State\u2019s evidence was insufficient to convict, such finding was implicit in the court\u2019s action granting defendant\u2019s motion to dismiss when it became clear after jeopardy had attached that the State had no witnesses to present. Thus, the Bean court concluded, defendant had been effectively acquitted, and the State had no right to appeal. On this basis, the Bean court dismissed the cause for lack of appellate jurisdiction. See also People v. Thomas (1975), 24 Ill. App. 3d 907, 322 N.E.2d 97 (ruling that where a continuance based on unavailability of essential witnesses is denied and the State fails to present evidence sufficient to convict, a judgment of acquittal may be entered by the court on its own motion).\nThe difference between this case and Bean is that here the State presented its \u201cpost-trial\u201d arguments attacking the circuit court\u2019s denial of the State\u2019s motion for a continuance and the court\u2019s granting of defendant\u2019s motion to dismiss in the trial court, rather than in the appellate court. But the principles expressed in Bean apply equally here. It is clear that the State can no more move in the circuit court for \u201creconsideration\u201d of an order which was in substance an acquittal than it can appeal from such order. Simply stated, once the court denies the State's motion for a continuance and grants a defendant\u2019s motion for an acquittal based on failure to produce sufficient evidence to convict, the trial court\u2019s determination is thereafter unreviewable. People v. Mink (1989), 186 Ill. App. 3d 316, 542 N.E.2d 468, citing People ex rel. Daley v. Crilly (1985), 108 Ill. 2d 301, 312, 483 N.E.2d 1236.\nIn this case it is apparent that the prosecutor did not learn until midtrial that the victim was not available to testify. The prosecutor\u2019s strategy in not pursuing the testimony of the State\u2019s other available witnesses is irrelevant. Moreover, whether or not defense counsel was cognizant of their presence outside the court room, there is no indication in the record that without the victim the available witnesses\u2019 testimony would have been sufficient to convict. What is relevant is that defendant had been placed in jeopardy and some evidence against him had been presented by the State when proceedings unexpectedly ground to a halt. The court, having determined not to grant the State\u2019s motion for a continuance, granted defendant\u2019s motion to \u201cdismiss.\u201d In effect, the court acquitted defendant for lack of evidence sufficient to convict, regardless of the terminology used. United States v. Scott (1978), 437 U.S. 82, 57 L. Ed. 2d 65, 98 S. Ct. 2187; People v. Bean (1985), 135 Ill. App. 3d 336, 481 N.E.2d 888.\nWe hold that, under these circumstances, double jeopardy protections precluded defendant\u2019s reprosecution. Accordingly, we reverse the judgment of the circuit court and vacate defendant\u2019s conviction.\nThe judgment of the circuit court is reversed.\nReversed.\nGORMAN and STOUDER, JJ., concur.", "type": "majority", "author": "JUSTICE BARRY" } ], "attorneys": [ "Rolfe F. Ehrmann, of Ehrmann, Gehlbach & Beckman, of Dixon, for appellant.", "Gary L. Spencer, State\u2019s Attorney, of Morrison (Gary F. Gnidovec, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY ORTIZ, Defendant-Appellant.\nThird District\nNo. 3\u201489\u20140653\nOpinion filed November 20, 1990.\nRolfe F. Ehrmann, of Ehrmann, Gehlbach & Beckman, of Dixon, for appellant.\nGary L. Spencer, State\u2019s Attorney, of Morrison (Gary F. Gnidovec, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0569-01", "first_page_order": 591, "last_page_order": 596 }