dissenting:
When the State originally sought and obtained dismissal of the lesser offenses, it clearly hoped that doing so would improve its chances of persuading the jury to return guilty verdicts for the more serious crimes. What the State failed to realize was that its strategy turned on proof that it could not provide.
At the close of the State’s case, the circuit court determined that the State had failed to establish the elements necessary to convict defendant of the more serious offenses. It therefore refused to allow the counts charging those offenses to be considered by the jury. That action constituted a directed verdict with respect to the more serious offenses. Because the directed verdict was based on the insufficiency of the evidence, it constituted an acquittal for double jeopardy purposes. People v. Williams, 188 Ill. 2d 293, 300 (1999).
Where, as here, a defendant has been acquitted of an offense and no other charges are pending when the acquittal is granted, the State may not file additional charges against the defendant based on the same physical act. If the State wishes to pursue prosecution of a lesser-included offense, it must proceed on both offenses simultaneously. If it does not, prosecution of the additional offense will be barred by the acquittal for the greater offense. See People v. Laue, 219 Ill. App. 3d 926, 930 (1991); 720 ILCS 5/3 — 3(b), 3 — 4(b) (West 1998).
Our decision in People v. Mullenhoff, 33 Ill. 2d 445 (1965) supports this conclusion. In that case the defendant was charged with attempted deviate sexual assault. At the conclusion of the State’s case, the defendant moved for a finding of not guilty. When the court granted that motion, the State immediately indicted the defendant for the crime of attempted rape based on the same incident, and defendant was convicted of that offense based on the same evidence. This court reversed. It held that because the offenses were based on the identical conduct of the defendant and because the conduct was known to the prosecuting officer at the commencement of the initial prosecution, the prosecutor was required either to elect the charge on which he wanted to proceed or to proceed on both charges in the same prosecution. He could not raise the charges seriatim. Accordingly, defendant’s acquittal on the initial offense precluded the prosecutor from obtaining a conviction for the subsequently filed offense. Mullenhoff, 33 Ill. 2d at 449.
Nothing in People v. Garcia, 188 Ill. 2d 265 (1999), cited by the majority, suggests that we should reach a contrary conclusion here. Garcia concerned a trial court’s right to sua sponte instruct on a lesser-included offense despite objection by the defendant. In contrast to the present case, Garcia did not involve a situation where the State formally dismissed the lesser offenses, then attempted to resuscitate them after the prosecution failed and the defendant was acquitted of the greater offenses based on the insufficiency of the evidence.
Lee v. United States, 432 U.S. 23, 53 L. Ed. 2d 80, 97 S. Ct. 2141 (1977), also cited by the majority, is likewise inapposite. At issue there was the government’s right to retry the defendant following dismissal of the original charge for failure to allege a necessary element of the offense. There was no question as to the sufficiency of the evidence. The defendant there was not acquitted for lack of evidence, as this defendant was, and the government did not attempt to obtain a conviction for a lesser-included offense after failing to secure a conviction for a greater offense, as the State did in this case.
Other cases cited by the majority are similarly distinguishable. People v. Novak, 163 Ill. 2d 93 (1994), for example, concerned the wholly unrelated issue of a trial court’s refusal of a lesser-included offense instruction tendered by the defendant. People v. Griggs, 152 Ill. 2d 1 (1992), addressed the amendment of an indictment on the day of trial to cure a formal defect, a problem not presented by this case. At issue in People v. Deems, 81 Ill. 2d 384 (1980), was the effect of a purported acquittal granted by the trial court following proceedings which involved no evidence, were not an attempt by the State to convict defendant, and amounted to a “sham.” Needless to say, none of those circumstances was present here. The trial in this case was a contested adversarial proceeding in which the State adduced evidence in a diligent effort to obtain defendant’s conviction.
My colleagues suggest that there was no harm in allowing the State to prosecute defendant for the lesser offenses following his acquittal of the greater offenses because the lesser-included offenses were actually included in the prosecution for the greater offenses and were charged in the indictment by implication. They forget, however, that the State expressly dismissed the lesser-included offenses before proceeding before the jury on the greater offenses. Once the charges were expressly dismissed, no possible claim could be made that the State still intended to pursue them by implication. The very idea defies reason. ’
My colleagues’ reliance on Supreme Court Rule 615(b)(3) (134 Ill. 2d R. 615(b)(3)) is also ill-conceived. Where a court of review determines that the evidence presented at trial was insufficient to support a conviction for the offense for which the defendant was found guilty, but that it was sufficient to support a conviction for a lesser-included offense, Rule 615(b)(3) allows the court to reduce the conviction to the lesser-included offense. See People v. Boyer, 138 Ill. App. 3d 16, 19 (1985). For this provision to apply, however, the defendant must actually have been convicted of the greater offense. Where the defendant has been acquitted of that offense, as this defendant was, Rule 615(b)(3) is inapplicable, and the State may not subsequently prosecute the defendant for any of the lesser offenses. See People v. Reagan, 111 Ill. App. 3d 945, 952 (1982), aff’d, 99 Ill. 2d 238 (1983).
There is only one reason we are here today, and that is because the State misunderstood what its own evidence would show. Unlike my colleagues, I do not believe we should compromise basic constitutional and statutory principles to save the State from its error. If the State is made to bear the consequences of its lapse in trial preparation, perhaps it will learn to be more diligent in the future. There is nothing to be gained by fabricating legal justifications for the State’s errors. Once we begin sacrificing legal guarantees in the interest of shoring up the State’s position, we may quickly find that those guarantees have slipped so far beyond our grasp that we are unable to retrieve them.
Defendant’s convictions for the lesser-included offenses should be reversed. I therefore dissent.