Do Double Jeopardy and Collateral Estoppel Bar Filing a Petition to Revoke Probation for Committing the Same Offence Again ?
In People v. Howell, 46 Ill. App. 3d 300, 360 N.E.2d 1212, 4 Ill. Dec. 837 (1977), the defendant was convicted of burglary and placed on two years' probation.
During his term of probation, the State filed a criminal charge of theft against him.
The State later filed a petition to revoke his probation, alleging that the defendant had violated the terms of his probation by committing the same theft offense.
The Howell court then wrote the following:
"When defendant appeared ready for trial on the theft charge, the State moved to dismiss the complaint, and a nolle prosequi was entered over defendant's objection.
At the subsequent hearing on the petition to revoke probation, the court denied defendant's motion to dismiss based on double[-]jeopardy grounds." Howell, 46 Ill. App. 3d at 301, 360 N.E.2d at 1213.
The foregoing description of events is hardly remarkable, and nothing about it suggests that:
(1) the State would have moved for dismissal with prejudice or;
(2) the trial court would have ordered the dismissal to be with prejudice. Yet, in the very next paragraph, the Howell court wrote the following:
"The sole issue raised by defendant on this appeal is whether the State is barred by the doctrines of double jeopardy and collateral estoppel from proceeding on a petition to revoke probation, grounded on the commission of a criminal offense, after a criminal complaint based on the same facts and phrased in the same language has been dismissed with prejudice." Howell, 46 Ill. App. 3d at 301, 360 N.E.2d at 1213.