
12 August 1999

No. 4-98-0478

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,	)	Appeal from

Plaintiff-Appellee,			)	Circuit Court of

v.                  		)	Vermilion County

LAWRENCE CARTER,		 			)	No. 97TR12775

Defendant-Appellant.		)	

                     		)	Honorable

)	Gordon R. Stipp,

)	Judge Presiding.

_______________________________________________________________



JUSTICE McCULLOUGH delivered the opinion of the court:

On May 22, 1998, a jury found defendant Lawrence Carter guilty of driving with a sus­pended license (DWS) (625 ILCS 5/6-

303 (West Supp. 1997)) and operating an uninsured vehicle (625 ILCS 5/3-707 (West 1996)).  The jury acquitted defendant of illegal transportation of alcohol (625 ILCS 5/11-502 (West 1996)).  On June 4, 1998, the trial court orally granted defen­

dant an acquit­tal notwith­standing the ver­dict on the charge of DWS, with a written order to be drafted by defense coun­sel.  On June 5, 1998, the trial court vacated the acquittal without signing the written order and ordered a new trial.  The trial court found it had erred at trial in exclud­ing evi­dence of defendant's sus­pend­ed license.  On June 8, 1998, defen­dant filed a motion to bar retrial as prohibited by the double jeopardy clauses of the state and federal constitu­tions (U.S. Const., amends. V, XIV; Ill. Const. 1970, art. I, §10).  The trial judge denied the motion.  We affirm.  

Around 8:30 p.m., on December 2, 1997, Danville police officer Nathan Howie stopped defendant.  Howie knew defendant's 

license to be suspended.  Defendant was not able to produce any identification or a valid insurance card.  After Howie radioed the police department for more information, Carter was issued cita­tions for DWS and operating an uninsured vehicle.  Howie searched defendant's car upon arresting him and found an open beer can.  He then issued defen­dant a citation for illegal transportation of alcohol.

On May 22, 1998, a jury trial was held.  Howie's testimony related the details of the traffic stop and his knowl­

edge of defendant's sus­pend­ed license.  During the trial, the State offered a certified transcript of a record of suspen­sion from the Illi­nois Department of the Secretary of State indi­cat­ing defendant's license was suspended when he was pulled over.  In re­sponse to defense counsel's objection, the trial court exclud­ed the tran­script as hear­say.  At the close of the State's case, defen­dant moved for a directed verdict on the DWS charge.  The trial court reject­ed defendant's motion, con­clud­ing Howie's testimony provid­ed some evidence to support the charge.  

In an attempt to present a necessity defense, defendant and his step­broth­er testi­fied defen­dant has diabetes.  Defen­dant testi­fied he was driving himself to the hospital to receive an insulin injec­tion when he was stopped by Howie.  The trial court reject­ed defendant's neces­si­ty defense in­struc­tion.  Again, the jury returned a verdict of not guilty on the count of illegal trans­porta­tion of alco­hol and guilty on the remaining counts.

On May 28, 1998, defendant filed a posttrial motion for acquittal notwithstanding the verdict or, in the alternative, a new trial.  The motion raised several grounds, including that defen­dant was not proved guilty beyond a reason­able doubt of DWS.  On June 4, 1998, the trial court granted defendant's motion for acquittal on this ground.  The trial court's docket entry states:

"Judgment of acquittal is entered as to the charge of DAS [(driv­ing after a license sus­

pension)].  Written order to follow from [Public Defender] Scott Lerner."

A bystander's report of the June 4, 1998, hearing contains identi­cal language.  Lerner prepared an order finding defendant not guilty of DWS.  This order was signed by the prose­cu­tor, but not the judge.  

On June 5, 1998, the trial judge stated the written order reason­ably reflected his position the day before.  However, the trial court 
sua
 
sponte
 vacated the judg­ment of acquit­tal on the DWS charge and granted defendant's motion for a new trial.  The judge stated he granted the judg­ment notwith­stand­ing the verdict because the only testi­mony of defendant's license suspen­sion was the testimo­ny of Howie, which had not been accept­ed for its truth, but only to estab­lish probable cause for the stop.

The trial judge concluded he had erred in excluding the transcript of the record of suspension.  On appeal, defendant con­cedes this was error.  The trial judge stated he was recon­sid­

er­ing both this ruling and the ruling on the posttrial motion.  The judge stated, "I have no choice but to find that my error has caused substan­tial inequity to the State."

On June 8, 1998, defendant filed a motion to dismiss the DWS count because double jeopardy barred retrial.  This motion was denied.  The trial judge stated the acquittal was subject to presen­tation of an acceptable final written order.  Because he had not signed the order, he concluded the prior DWS conviction remained in effect.  The court stated that, even had the order been approved, the court has "inherent authori­ty to do manifest justice to both of the parties and that would in­clude a reconsid­eration of a ruling within the 30[-]day time peri­od."  Defendant seeks an immediate appeal of the trial court's order under Supreme Court Rule 604(f) (145 Ill. 2d R. 604(f)).

Defendant argues a new trial on the DWS charge is barred because of the June 4, 1998, docket entry acquitting him of the charge.  The double jeopardy clause protects against a second prosecution for the same offense after an acquittal.  
United States v. Wilson
, 420 U.S. 332, 342-43, 43 L. Ed. 2d 232, 241, 95 S. Ct. 1013, 1021 (1975).

The trial court's actions in this case raise two double jeopardy issues:  (1) whether the trial court could vacate its oral acquittal; and (2) assuming it could, whether it could then order a new trial.  The State argues the June 4, 1998, acquit­tal was not effec­tive because the trial judge vacated it without signing defense counsel's proposed written order.  At the post-

trial motion on the double jeopardy issue, the trial court concluded the acquit­tal was tentative, dependent on submis­sion of an acceptable written order.  However, what consti­tutes an acquit­tal for purpos­es of the double jeopardy clause is not necessarily con­trolled by the form of the judge's action or the label the judge attaches to it.  
People v. Deems
, 81 Ill. 2d 384, 388-89, 410 N.E.2d 8, 10 (1980).  

The test for deter­min­ing whether an acquit­tal oc­curred is whether the trial court's action "'actu­al­ly repre­sents a resolu­tion, correct or not, of some or all of the factual ele­

ments of the offense charged.'"  
People ex rel. Daley v. Crilly
, 108 Ill. 2d 301, 311, 483 N.E.2d 1236, 1241 (1985), quoting 
United States v. Martin Linen Supply Co.
, 430 U.S. 564, 571, 51 L. Ed. 2d 642, 651, 97 S. Ct. 1349, 1355 (1977).  The June 4, 1998, docket entry and bystander's report state un­equivocally that defen­dant is acquit­ted of the DWS charge.  The trial judge stated the defense counsel's written order reason­ably reflected his posi­tion when the docket entry was made.

The acquittal was effective when announced.  See 
People v. Poe
, 121 Ill. App. 3d 457, 462, 459 N.E.2d 667, 671 (1984) (directed verdict is effective when announced).  A judg­ment not­

with­stand­ing the verdict is, in sub­stance, the same as a directed verdict.  
People v. Van Cleve
, 89 Ill. 2d 298, 303, 432 N.E.2d 837, 839 (1982); 
People v. Lamb
, 265 Ill. App. 3d 10, 12, 638 N.E.2d 1203, 1205 (1994).  

The next issue is whether the trial court had the authority to reconsider its acquittal.  For purpos­es of the double jeopar­dy clause, the power of the trial court to recon­sid­

er an acquit­tal notwithstanding the verdict is analogous to the power of an appel­late court to review the same order.  While the United States Supreme Court has not directly addressed the issue, it is gener­ally accepted that an appellate court may review an acquit­tal notwith­standing the verdict.  
United States v. Covino
, 837 F.2d 65, 67-68 (2d Cir. 1988); 
United States v. Woodruff
, 600 F.2d 174, 175 (8th Cir. 1979); 
United States v. Blasco
, 581 F.2d 681, 683-84 (7th Cir. 1978); 
United States v. Jenkins
, 420 U.S. 358, 365, 43 L. Ed. 2d 250, 256, 95 S. Ct. 1006, 1011 (1975) (in 
dicta
).  Simi­larly, here, the trial court did not violate the double jeopardy clause by recon­sidering its prior acquittal.  

Article VI of the Illinois Constitu­tion places addi­

tion­al re­stric­tions on the State's ability to appeal an acquit­

tal.  See Ill. Const. 1970, art. VI, §6.  This provi­sion is broader than the double jeopar­dy clause and prohib­its the State from appeal­ing a trial court's decision to acquit notwith­stand­ing a guilty ver­dict.  
Van Cleve
, 89 Ill. 2d at 307, 432 N.E.2d at 841.  However, this restric­tion is specific to appeals and does not limit the State's ability to move to recon­sider the trial court's deci­sion in the defendant's favor.  See 
People v. Mink
, 141 Ill. 2d 163, 171, 565 N.E.2d 975, 978 (1990).

We next consider whether the trial court properly exercised its authority in reconsidering the acquittal and in granting a new trial pursuant to defendant's motion.  A motion for an acquittal notwithstanding the verdict asserts that as a matter of law the evidence is insufficient to support a finding or verdict of guilty.  The trial court must consider only whether a reasonable mind can fairly conclude the guilt of the accused beyond a reasonable doubt, considering the evidence most strongly in the State's favor.  
People v. Rey
, 136 Ill. App. 3d 645, 650, 483 N.E.2d 982, 986 (1985).

The State argues the evidence actually presented at trial was sufficient to support a conviction; the jury could infer defendant was driving without a license from Howie's testimony; defendant's demeanor in court implied he had knowledge of his guilt; and his necessity defense implied an admission of the elements of the offense.  The State asserts the trial court should have simply reinstated defendant's conviction when it vacated the acquittal.

The only elements necessary to prove the offense of driving a motor vehicle after the revocation of one's driving privilege are (1) the act of driving a motor vehicle on the highways of Illinois; and (2) the fact of the revocation of the driver's license or privilege.  
People v. Papproth
, 56 Ill. App. 3d 683, 686, 371 N.E.2d 1097, 1099 (1977).  Only the second element is in dispute.

The State may prove defendant's license was revoked from facts other than a driving abstract.  
People v. O'Connell
, 24 Ill. App. 3d 792, 793, 321 N.E.2d 535, 536 (1974) (State proved case by testimony of police officer who related defen

dant's admission to driving with a suspended license).  The jury could infer defen­dant was driving without a license from Howie's testimony that he knew defendant's license was revoked and defendant's admission that he was guilty of the ele­ments of the offense when he presented a necessity defense.  This admis­sion continues even though the trial court refused to allow defendant to present a necessity defense instruction to the jury.  See 
People v. Pickett
, 217 Ill. App. 3d 426, 428, 577 N.E.2d 502, 504 (1991).  

Finally, we determine whether the trial court had the authority to order a new trial.  A new trial is allowed if a convic­tion is set aside due to a procedural error, but not if it is set aside because the evidence was not suffi­cient to convict.  
Mink
, 141 Ill. 2d at 173-74, 565 N.E.2d at 979-80.  The June 4, 1998, docket entry reflected a decision the evidence presented at trial was not sufficient to convict defen­dant of DWS.

However, the order for a new trial reflected a decision that the jury's verdict was merely against the weight of the evi­

dence.  See 
Rey
, 136 Ill. App. 3d at 650, 483 N.E.2d at 986.  Therefore, a new trial was permissible under the double jeopardy clause.  See 
Tibbs v. Flori­da
, 457 U.S. 31, 72 L. Ed. 2d 652, 102 S. Ct. 2211 (1982).  In 
Tibbs
, the Supreme Court stated:

"[W]hen a reversal rests upon the ground that the prosecution has failed to produce suffi­

cient evidence to prove its case, the Double Jeopardy Clause bars the prosecutor from making a second attempt at conviction.

As we suggested just last Term, these policies do not have the same force when a judge disagrees with a jury's resolution of conflicting evidence and concludes that a guilty verdict is against the weight of the evidence.  See 
Hudson v. Louisiana
, 450 U.S. 40, 44-45, n. 5 (1981).  A reversal on this ground, unlike a reversal based on insuffi­

cient evidence, does not mean that acquittal was the only proper verdict.  Instead, the appellate court sits as a 'thirteenth juror' and disagrees with the jury's resolution of the conflicting testimony.  This difference of opinion no more signifies acquittal than does a disagreement among the jurors them­

selves.  A deadlocked jury, we consistently have recognized, does not result in an ac­

quittal barring retrial under the Double Jeopardy Clause.  Similarly, an appellate court's disagreement with the jurors' weigh­

ing of the evidence does not require the special deference accorded verdicts of ac­quittal."  
Tibbs
, 457 U.S. at 42, 72 L. Ed. 2d at 661-62, 102 S. Ct. at 2218.

There­fore, after the trial court recon­sid­ered its acquit­tal notwith­standing the verdict and reinstated the jury's guilty verdict, it could then grant defendant's motion for a new trial.

Having determined the trial court had the authority to order a new trial, we do not determine whether it properly exercised that authority here.  Once the acquittal was vacated, the new trial order bene­fit­ted defendant.  The State may not appeal the trial court's decision to grant a defendant a new trial.  
People v. Allen
, 168 Ill. App. 3d 397, 402, 521 N.E.2d 1172, 1175  (1987); 145 Ill. 2d R. 604(a)(1).

For all of the above reasons, we affirm.

Affirmed.

COOK and MYERSCOUGH, JJ., concur.

