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Dismissal for double jeopardy was improper.

People vMoore, No. 3-07-0567; 2008 WL 4735609 (3d D 2008)

On October 24, 2008, the Illinois Appellate Court, Third District, reversed the judgment of the Circuit Court of Kankakee County granting the defendant's motion to dismiss on grounds of double jeopardy.

The defendant was charged with criminal sexual assault and a jury trial commenced. Near the end of the state's case-in-chief the state proposed to introduce the testimony of the officer who conducted the interview in which the defendant made a videotaped statement because the videotape was missing its audio track. The defendant signed a Miranda waiver at the time the videotape was made that stated the videotape with video and audio record of the interview was being made to insure his rights and accuracy of the conversation. The defendant filed a motion to suppress testimony from the officer regarding what the defendant said during the interview arguing that his Miranda waiver was no longer valid because he had waived his rights under express expectation that his statement would be preserved by video/audio record. The trial court granted the motion to suppress and the state appealed. The trial court declared a mistrial because it believed the jury could not be held over for the time it would take to obtain a complete appellate review. The appellate court affirmed the trial court's ruling on suppression and the supreme court declined leave to appeal. The defendant then filed a motion to dismiss on double jeopardy grounds and the trial court granted the motion.

The appellate court found that the defendant's motion was a timely motion pursuant to 725 ILCS 5/114-11(g) and that "[t]he failure of a trial court to terminate the trial and allow the State to file an interlocutory appeal pursuant to section 114-11(g) constitutes reversible error." Furthermore, the appellate court held that the dictates of Section 114-11(g) control as to the double jeopardy issue and therefore the state should have been allowed to retry the defendant.
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Title Annotation:cases: Illinois Appellate Courts
Publication:Illinois Bar Journal
Date:Jan 1, 2009
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