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Docket No. 93602-Agenda 9-January 2003.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. 
JASON HENRY, Appellee.

Opinion filed April 17, 2003.

CHIEF JUSTICE McMORROW delivered the opinion of thecourt:

The principal issue presented in this appeal is whether certainstatements made by the circuit court amounted to an acquittal, fordouble jeopardy purposes, under the reasoning set forth in Peoplev. Williams, 188 Ill. 2d 293 (1999).

BACKGROUND

On September 3, 1996, defendant was charged in a juvenilepetition with the offense of involuntary manslaughter (720 ILCS5/9-3(a) (West 1996)). The petition alleged that defendant, whowas 16 years old at that time, was a delinquent minor in that onSeptember 2, 1996, he recklessly struck Curtis Hurlbut in the face,causing him to fall and strike his head on a concrete sidewalk,resulting in Hurlbut's death. Defendant, represented by the publicdefender, pled guilty to the allegations in the petition. As part ofthe plea agreement, the State agreed not to file any proceedings totransfer this matter to the adult criminal court. The circuit court ofMadison County accepted defendant's guilty plea, adjudgeddefendant a delinquent minor, and, on October 30, 1996,committed defendant for an indeterminate period to the juveniledivision of the Department of Corrections.

On November 13, 1996, defendant, represented by retainedcounsel, filed a motion to withdraw his guilty plea. In his motion,defendant alleged that he was not appraised of his rights in thismatter prior to agreeing to plead guilty, and that he made the pleaunder duress due to the prosecutor's threats that he would becharged with murder as an adult if he did not plead guilty. Inaddition, defendant also alleged that the guilty plea was madedespite the fact that no autopsy report or death certificate had beenfiled with respect to Hurlbut, which would allow defendant or hiscounsel to make an informed decision as to how to proceed in thismatter. Finally, defendant further alleged that there wereconflicting witness statements with respect to the events leadingto Hurlbut's death, and that the evidence indicated that Hurlbut'sdeath was accidental and not intentional. On December 31, 1996,the circuit court granted defendant's motion to withdraw his guiltyplea.

On January 8, 1997, the State filed a motion, pursuant tosection 5-4 of the Juvenile Court Act of 1987 (705 ILCS 405/5-4(West 1996)), requesting that defendant be tried as an adult. Thecircuit court granted the State's motion on January 22, 1997, andtransferred this matter to adult criminal court. On January 24,1997, defendant was charged by information with the involuntarymanslaughter of Curtis Hurlbut. Defendant was charged for thissame offense by indictment on February 6, 1997. On March 9,1998, the State filed an amended information, which, in additionto involuntary manslaughter, charged defendant with the offenseof aggravated battery. Specifically, count II of the amendedinformation alleged that defendant committed aggravated batteryin that he committed a battery on a public way, being a publicsidewalk, by striking Hurlbut in the face, in violation of section12-4(b)(8) of the Criminal Code of 1961 (720 ILCS 5/12-4(b)(8)(West 1996)).

On March 10, 1998, defendant's jury trial commenced. TheState presented the testimony of two eyewitnesses who stated thatdefendant, on a dare, struck Hurlbut in the face with a closed fist.The witnesses further testified that at the time he was hit, Hurlbutwas standing on a grassy lawn. However, as a result of the impact,Hurlbut fell backwards and struck his head on a concrete sidewalk.The State also presented the testimony of a law enforcementofficer who arrived at the scene shortly after the incident. Theofficer found Hurlbut, still alive, lying face up, bleeding from theback of his head and his mouth. According to the officer, the lowerpart of Hurlbut's body was located on the grassy lawn, while theupper part of Hurlbut's body was on the sidewalk. Hurlbut wastaken by ambulance to a hospital, where he later died.

Defendant testified on his own behalf. According todefendant, Hurlbut had previously made comments that madedefendant uneasy. According to defendant, on the date ofHurlbut's death, Hurlbut approached defendant and defendantbecame nervous. Defendant admitted striking Hurlbut and thatHurlbut thereafter fell to the ground and hit his head on thesidewalk. Defendant stated that Hurlbut's upper body-hisshoulders and head-were on the sidewalk, while the lower portionof Hurlbut's body remained on the grassy lawn.

At the close of evidence, defense counsel moved for adirected verdict on both charged counts. With respect to the chargeof aggravated battery in count II, defense counsel argued that theState had failed to prove that the victim was "on or about a publicway," as required by section 12-4(b)(8) of the Criminal Code of1961 (720 ILCS 5/12-4(b)(8) (West 1996)), in that the Stateadduced no testimony that the battery was committed on thesidewalk. Defense counsel argued that the evidence showed thatthe victim was standing on the grass when he was hit, and thatwhen he landed he was lying partially on the sidewalk andpartially on the grass.

The circuit court denied defendant's motion for directedverdict as to the charge of involuntary manslaughter contained incount I. However, as to the aggravated battery charge contained incount II, the following colloquy occurred between the circuit courtjudge, the prosecutor, and defense counsel:

"THE COURT: "[C]learly, based on the evidence of thetwo eyewitnesses, even taking into account somedistinction that [one witness] made as to [Hurlbut's]location being a little closer to the sidewalk, I don'tbelieve we have any evidence that [Hurlbut] was on orabout a public sidewalk, in that he was just simply up inthe yard when this happened. So I'm going to grant thedirected verdict as to Count II. Anything else while we arestill on the record?

THE PROSECUTOR: Judge, I would ask for leave toappeal that ruling and let it go up.

DEFENSE COUNSEL: Does that mean a mistrial hereor-

THE PROSECUTOR: That's your option at this pointin time whether you want to go on the other count or not,but I intend to appeal it and would notify the Court that Iintend to appeal that.

DEFENSE COUNSEL: Well, you can appeal Count IIand we'll just go ahead and-well-

THE PROSECUTOR: Are you willing to sever them atthis time?

DEFENSE COUNSEL: No, I'm not willing to severthem at this time. This puts us in a precarious position. Iwould ask for a moment or two recess to talk to my client.

THE COURT: Sure.

(A recess was held)

DEFENSE COUNSEL: For the record, Your Honor,first of all, it would appear to me that, and the Court willcorrect me if I'm wrong, but there is some good questionwhether or not the granting of a directed verdict is anappealable order. It certainly seems to me that it's afinding by the court that the defendant is not guilty. It'snot a ruling on the-not a procedural ruling on the form ofthe indictment or the sufficiency of the information, it's aruling that as a matter of law that the man is not guilty. Sothe last time I checked not guilty's are not appealable. SoI don't think that, unless there is some case law that [theprosecutor] has that says he can appeal it, he can't appealit.

If the court is going to make a finding, however, that itis appealable and allow the State to appeal that, then Ithink that we have to ask for a mistrial because I don'tthink its proper to have one jury hear part of this case andthe other jury hear part of this case when it's a case ofmandatory joinder of these charges. So we either got all ornothing here, folks.

THE PROSECUTOR: I would ask that you reserveyour ruling on the Motion for Directed Verdict until I canget in the library over the lunch hour.

THE COURT: Yes, reconsidering the arguments ofcounsel, the Court will vacate its previous order. Thecourt will reserve the ruling on the Motion for DirectedVerdict relative to Count II."

After a recess, the circuit court held a jury instructionconference. At the request of defense counsel, the jury wasinstructed not only on involuntary manslaughter and aggravatedbattery, but also on the lesser-included offense of misdemeanorbattery. Upon conclusion of the jury instruction conference, thecircuit court judge informed defense counsel that "in the interim,"and in support of his argument that defendant's motion for adirected verdict on the charge of aggravated battery should not begranted, the prosecutor had provided the judge with a copy of adecision of the appellate court in People v. Lowe, 202 Ill. App. 3d648 (4th Dist. 1990). The Lowe court broadly defined the term"about a public way," as used in the aggravated battery statute, tomean " 'in the immediate neighborhood of; *** near' " a publicway. Lowe, 202 Ill. App. 3d at 653, quoting 1 C.J.S. About, at 329(1985). The circuit court judge concluded that the facts of thematter at bar fell within the definition of "about a public way" asset forth in Lowe. Accordingly, the circuit court judge denieddefendant's motion for directed verdict on count II. In response,defense counsel stated, "[v]ery well, Your Honor."

Thereafter, the jury was called into the courtroom, theprosecutor and defense counsel delivered closing arguments, andthe circuit court judge instructed the jury. The jury then retired fordeliberations at 2:24 p.m. At 7:20 p.m., the jury informed thecircuit court that the jurors were "hung." The circuit court denieddefense counsel's request for a mistrial and instead ruled that thejury would be provided with additional instructions. The jury wasthen brought into the courtroom. The jury foreperson indicatedthat verdict forms were signed by all the jurors with respect to twocounts, and that the jury was only hung on a third count. Thespecific counts were not identified for the record at that time. Thecircuit court instructed the jurors to continue deliberations in aneffort to reach a verdict on the third count. Soon thereafter, thejury sent a note to the judge stating that "we are still stuck on thethird proposition of the involuntary manslaughter charge. We arehaving particular problems with what 'likely' and great bodilyharm means. Any light you may shed would be greatlyappreciated." The circuit court denied the request of defensecounsel to declare a hung jury and questioned the jury forepersonin an attempt to discern the problem. Thereafter, the circuit courtsent additional instructions to the jurors, and the jury continueddeliberations.

Finally, the jury returned to the courtroom and the forepersonindicated that the jury remained unable to reach a verdict on theinvoluntary manslaughter charge. The jury, however, returnedsigned verdict forms finding defendant guilty of aggravated batteryand battery. At the request of defense counsel, the jury was polledand then discharged. On March 20, 1998, eight days after the juryreturned its verdicts, the circuit court judge filed a docketingstatement in which he declared a mistrial on the involuntarymanslaughter charge on the basis that the jurors "indicated theycould not reach a verdict." The circuit court judge then enteredjudgment on the verdict of guilty as to the charge of aggravatedbattery. On May 28, 1998, after denying defendant's posttrialmotion and conducting a sentencing hearing, the circuit courtjudge sentenced defendant on the aggravated battery conviction tofive years' imprisonment in the Department of Corrections. Thecircuit court thereafter entered a written order, dated July 2, 1998,directing the circuit clerk to prepare and file a written notice ofappeal on behalf of defendant. On July 9, 1998, the clerk filed awritten notice of appeal with the appellate court. In addition, theOffice of the State Appellate Defender was appointed to representdefendant during the appeal.

While defendant's appeal was pending in the appellate court,defendant appeared with his retained counsel in the circuit courton January 4, 1999. Defense counsel informed the court thatdefendant had entered into a negotiated plea agreement with theState on charges in a separate case, number 97-CF-229, as well ason the charges that had already been adjudicated in the instantcause. Cause number 97-CF-229 arose on September 3, 1996, thesame day that defendant had been arrested in the matter at bar.Upon a search incident to his arrest, defendant was discovered inthe unlawful possession of cannabis and the unlawful possessionof a controlled substance. Pursuant to the negotiated pleaagreement, the State dismissed the charge of unlawful possessionof cannabis. In exchange, defendant agreed to plead guilty to theunlawful possession of a controlled substance and a sentence ofthree years' incarceration in the Department of Corrections, to runconcurrently with the sentences imposed in the instant matter. Asto the charges involved in the instant cause, defendant agreed toplead guilty to both involuntary manslaughter and aggravatedbattery for a sentence of imprisonment of four years on eachoffense, to run concurrently. In addition, defendant agreed towithdraw his appeal in the instant matter. As part of thisagreement, defendant was given credit for time already served. Asdefendant had already served 553 days, defendant was left with 82days to serve on the negotiated pleas. After conducting a hearing,the circuit court entered a written order confirming the pleaagreement.

Thereafter, the State filed in the appellate court a motion tosupplement the record on appeal with the January 4, 1999, orderentered by the circuit court confirming the plea agreement. Inaddition, the State filed a motion to dismiss defendant's appeal inaccordance with the plea agreement. Defendant filed objections.The appellate court ruled that the State's motions and defendant'sobjections would be taken with the case. In addition, the appellatecourt ordered the State to file a report of the January 4, 1999,hearing on the plea agreement.

The appellate court vacated defendant's conviction andsentence for aggravated battery. The appellate court also enteredjudgments of acquittal on the aggravated battery charge, inaddition to the charges of battery, and involuntary manslaughter.329 Ill. App. 3d 397. In its opinion, the appellate court firstconsidered the State's motion to dismiss defendant's appeal underthe plea agreement. The appellate court held that with respect tothe charges at issue in the case at bar, the plea agreementproceedings and the order entered thereupon were void ab initiobecause the trial court lacked subject matter jurisdiction. Theappellate court reasoned that once the notice of appeal had beenfiled, the lower court had no jurisdiction over this matter, and,therefore, any actions taken by it were null and void. In addition,the appellate court held that the parties to an appeal cannot, byagreement or otherwise, revest jurisdiction in the trial court whenjurisdiction lies in the appellate court.

The appellate court also rejected the argument advanced bythe State that because the trial court had declared a mistrial on thecharge of involuntary manslaughter, and because defendant couldhave been retried on that charge, the trial court retainedjurisdiction over at least that one charge. Thus, the State asserted,the plea agreement with respect to the involuntary manslaughtercharge was not without circuit court jurisdiction and, therefore,was not null and void. The appellate court held that defendantcould not have been retried on the charge of involuntarymanslaughter, for to have done so would have violated defendant'sconstitutional protection against double jeopardy on two grounds.First, defendant was convicted and sentenced by the circuit courtfor aggravated battery, and the rule of "one-act, one-crime" wouldprevent a conviction and sentence on the involuntary manslaughtercharge. For the single act of striking the victim in the face with hishand, defendant was charged with two separate and distinctoffenses: aggravated battery on a public way and involuntarymanslaughter. The appellate court observed that although adefendant may be prosecuted simultaneously for more than onecrime carved from a single physical act, a defendant cannot beconvicted and sentenced for more than one crime carved from asingle physical act. Accordingly, if multiple convictions areentered for those crimes, judgment and sentence may only beentered on the most serious offense. The appellate court concludedthat "[b]ecause defendant was convicted of aggravated battery andwas sentenced for that offense, he could not thereafter bereprosecuted for the offense of involuntary manslaughter, anoffense based on the same physical act as the aggravated battery."329 Ill. App. 3d at 404. Second, the appellate court held that wherethe jury found defendant guilty of aggravated battery but"remained silent" on the charge of involuntary manslaughter andthe trial court accepted the guilty verdict and discharged the jury,the "silence" of the jury on the charge of involuntary manslaughteris deemed to be an acquittal of that charge for the purposes ofdouble jeopardy. 329 Ill. App. 3d at 404.

The appellate court then addressed the merits of defendant'sappeal. The appellate court held that the circuit court judgeunequivocally acquitted defendant of aggravated battery when thejudge granted a directed verdict on this charge in favor ofdefendant, based upon the insufficiency of the State's evidence.The appellate court further held that defendant's right not to be puttwice in jeopardy for the same offense was violated when thejudge reconsidered his grant of a directed finding in favor ofdefendant, vacated that ruling, and subsequently sent theaggravated battery charge to the jury. Although the appellate courtacknowledged that defendant had waived this issue in the lowercourt, the court reviewed this contention under the plain error ruleon the basis that the alleged error affected defendant's substantialright to be free from double jeopardy. The appellate court alsofactually distinguished the matter at bar from this court's opinionin People v. Williams, 188 Ill. 2d 293 (1999), on the basis that inWilliams the trial court did not actually grant the defendant'smotion for directed verdict but, rather, reserved ruling on themotion until the State could present legal authority. The appellatecourt observed that, in Williams, "[i]n the same breath with whichthe trial court indicated that it would grant the defendant's motionfor directed verdict, and without interruption by counsel or byrecess, the trial judge also indicated that she was not ready to ruleon the motion and indicated that she would accept the submissionof legal authority. The parties at no time understood or proceededas if the trial court had, in fact, granted the defendant's motion fordirected verdict. When it ultimately denied the motion, the trialcourt did not indicate that it was reconsidering or vacating thegrant of a directed verdict." 329 Ill. App. 3d at 406-07.

In contrast, in the instant matter, the appellate court held thatthe trial court clearly granted defendant's motion for a directedverdict based upon the insufficiency of the evidence to prove thatthe battery occurred on or about a public way. "The prosecutorimmediately understood that the trial court had granted a directedverdict in favor of defendant and indicated that he was going toappeal the ruling. Had the trial court's ruling been equivocal, theprosecutor would have continued his argument on the motion;instead, the prosecutor indicated his intention to appeal. Bothattorneys then proceeded to argue about whether the appeal wouldresult in a mistrial of the other charges. A recess was taken, afterwhich the trial court 'vacated' the directed verdict and reserved itsruling on defendant's motion. Both parties, as well as the trialjudge, understood that the court had, in fact, granted a directedverdict of acquittal. Once granted, that verdict could not bereconsidered or vacated, and defendant could not be prosecutedfurther on the charge." 329 Ill. App. 3d at 407. The appellate courtconcluded that the actions of the circuit court violated defendant'sright not to be twice put in jeopardy for the same offense.Accordingly, the appellate court vacated defendant's convictionand sentence for aggravated battery and entered a judgment ofacquittal on that charge.

The appellate court also vacated defendant's conviction forbattery. The court reasoned that the acquittal of defendant by thecircuit court of the greater offense of aggravated batteryconstitutes, for double jeopardy purposes, the acquittal of anylesser-included offenses that could have been charged but werenot. Battery is a lesser-included offense of aggravated battery, andthe State did not charge defendant with battery, but it could have.The appellate court concluded that "[i]n light of the trier of fact'sacquittal of defendant on the greater offense of aggravated battery,a trial on the lesser-included, but uncharged, offense of battery wasbarred." 329 Ill. App. 3d at 408. The appellate court thus entereda judgment of acquittal on that charge.

Finally, the appellate court vacated the conviction ofinvoluntary manslaughter. The appellate court concluded that thejury's silence on that charge, coupled with the trial court'sacceptance of the guilty verdict on the charge of aggravated batteryand its discharge of the jury, amounted to an acquittal of theinvoluntary manslaughter charge.

This court granted the State's petition for leave to appeal. 177Ill. 2d R. 315(a).

ANALYSIS

At the outset, we note that the State does not contest theappellate court's holding that the January 4, 1999, plea agreementwas void for want of subject matter jurisdiction. Instead, the Stateargues only that the appellate court erred in holding thatdefendant's right to be free from double jeopardy was violated inthis case.

Initially, the State maintains that the appellate court erred inaddressing defendant's assertion that the actions of the circuitcourt judge had resulted in an acquittal of the aggravated batterycharge, and that defendant's subsequent conviction for aggravatedbattery violated the prohibition against double jeopardy. The Statecorrectly observes that this argument was procedurally defaultedbelow. The record discloses that at the time the circuit court judgeultimately decided to deny defendant's motion for directed verdicton count II, defense counsel did not object. Rather, defensecounsel appeared to acquiesce in the ruling, stating, "[v]ery well,Your Honor." In addition, defendant did not raise the doublejeopardy issue in his posttrial motion. See People v. Enoch, 122Ill. 2d 176, 186 (1988). Pursuant to Supreme Court Rule 615(a)(134 Ill. 2d R. 615(a)), however, this court may review anargument not properly preserved in the circuit court if we concludethat plain error affecting a substantial right has occurred. Peoplev. Shaw, 186 Ill. 2d 301, 326-27 (1998). For the reasons thatfollow, we agree with the appellate court that defendant'ssubstantial right to be free from double jeopardy was violated inthe case at bar. We therefore excuse the procedural default.

The State contends that the appellate court erred when it heldthat the circuit court judge had unequivocally acquitted defendantwhen the judge originally indicated that he would grantdefendant's motion for a directed verdict on the charge ofaggravated battery. According to the State, an examination of theentire colloquy between the judge, the prosecutor, and defensecounsel reveals that "the trial judge invited further discussion onthe issue and did not make an unequivocal finding of not guilty."The State focuses upon the fact that the judge never actually statedthat defendant was not guilty or was acquitted, and instead told theparties that he was "going to grant the directed verdict" withrespect to the charge of aggravated battery. The State interprets thejudge's pronouncement as equivocal, indicating that the judge wasopen to further argument on the aggravated battery issue. Insupport of its position, the State attempts to analogize the facts inthe matter at bar to those present in our previous decision inPeople v. Williams, 188 Ill. 2d 293 (1999), where we concludedthat because a defendant's motion for a directed finding of notguilty was not unequivocally granted, his subsequent convictionon that same charge did not place him in double jeopardy.

Defendant counters that the appellate court correctly held thatthe circuit court, without equivocation, granted a directed verdictof acquittal in defendant's favor on the charge of aggravatedbattery. Defendant therefore asserts that the facts in the matter atbar are distinguishable from those present in Williams, and,accordingly, a contrary result is warranted. Defendant furthercontends that because the circuit court judge unequivocallyacquitted defendant of aggravated battery, the appellate courtcorrectly held that defendant's subsequent prosecution andconviction on the aggravated battery charge violated theconstitutional prohibition against double jeopardy. We agree.

The double jeopardy clause of the fifth amendment to theUnited States Constitution provides that no person shall "besubject for the same offence to be twice put in jeopardy of life orlimb." U.S. Const., amend. V. Similarly, article I, section 10, ofthe Illinois Constitution of 1970 provides that no person shall "betwice put in jeopardy for the same offense." Ill. Const. 1970, art.I,