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People v. Rothman

Case Date: 03/31/2004
Court: 1st District Appellate
Docket No: 1-03-1635 Rel

THIRD DIVISION
Date Filed: March 31, 2004


No. 1-03-1635
      
THE PEOPLE OF THE STATE OF ILLINOIS,

                         Plaintiff-Appellee,

                         v.

RICHARD R. ROTHMAN,

                         Defendant-Appellant.

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)		 Appeal from the
Circuit Court of
Cook County.

No. 02 MC1 290300

Honorable
James P. McCarthy,
Judge Presiding.

JUSTICE HALL delivered the opinion of the court:

Pursuant to Supreme Court Rule 604(f) (188 Ill. 2d R. 604(f)),the defendant, Richard R. Rothman, appeals the denial of his motionto dismiss based on double jeopardy grounds. We affirm and remandthis case to the circuit court for further proceedings.

The facts of this case are not in dispute.

On August 22, 2002, the State filed a petition for rule to showcause against the defendant in Gran-Oak Condominium Ass'n, Inc. v.Atiliano D. Bondoc (No. 10 M1 720548). The petition alleged asfollows.

On May 6, 2002(1), the defendant appeared before Circuit CourtJudge Sheldon Garber on a motion to vacate a previously entereddismissal order and requested a continuance of his motion. AttorneyEric C. Patt informed Judge Garber that the defendant was notauthorized to practice law due to a suspension of his law license andthat there was no motion to vacate the dismissal order attached tothe notice of motion. The defendant informed Judge Garber that hewas appealing his suspension in federal court, but that, due to hissuspension, he could not write the motion. Judge Garber denied themotion and called the next case. As Mr. Patt was leaving thecourtroom, the defendant struck Mr. Patt on the back of the head.

Judge Garber ordered the courtroom deputy to bring the defendantback into the courtroom and to place him in the jury room. While inthe custody of the deputy, the defendant escaped but was subsequentlyapprehended by Cook County sheriff's police and the Chicago police.

The petition sought a finding, based on the above facts, thatthe defendant's conduct was willful and contumacious and requestedthat the defendant be fined or otherwise sanctioned.

On November 14, 2002, the defendant filed a motion to dismissthe State's petition. In his motion, the defendant alleged that onOctober 28, 2002, he had been tried for battery arising out of thesame incident and that the State's petition should be dismissed onthe basis of double jeopardy and other due process violations.(2)

On November 19, 2002, Circuit Court Judge James P. McCarthydenied the defendant's motion. This appeal followed.

ANALYSIS

The defendant contends that the State's petition for rule toshow cause is barred by his plea of guilty to the battery charge.

I. Standard of Review

When, as here, the issues raised are purely issues of law, thecourt reviews the record de novo. People v. Daniels, 187 Ill. 2d301, 307, 718 N.E.2d 149, 155 (1999); see also People v. Walker, 308Ill. App. 3d 435, 438, 720 N.E.2d 297, 299-300 (1999) (while thedefense of double jeopardy combines questions of law and fact, aquestion of law arises when neither the credibility of the witnessesnor the facts are at issue).

II. Discussion

The double jeopardy clause of the fifth amendment, madeapplicable to the states through the fourteenth amendment, providesthat no person shall "'be subject for the same offence to be twiceput in jeopardy of life or limb.' [Citation.]" People v.Sienkiewicz, 208 Ill. 2d 1, 4, 802 N.E.2d 767, 770 (2003). The sameprotection is afforded to the citizens of this state by the IllinoisConstitution. Sienkiewicz, 208 Ill. 2d at 4, 802 N.E.2d at 770; Ill.Cons. 1970, art. I,