No.  2--01--0349				 					    		

	IN THE

	APPELLATE COURT OF ILLINOIS

	SECOND DISTRICT

THE PEOPLE OF THE STATE OF	)	Appeal from the Circuit Court

ILLINOIS,	)	of Lake County.

	)	

	Plaintiff-Appellee,	)	

	)

v.		)	No. 00--CF--2803

	)

MARIUSZ SIENKIEWICZ,	)	Honorable

	)	Christopher C. Starck,

	Defendant-Appellant.	)	Judge, Presiding.

	JUSTICE GEIGER delivered the opinion of the court:

	The defendant, Mariusz Sienkiewicz, appeals from the January 19, 2001, order of the circuit court of Lake County denying his

motion to dismiss the indictment charging him with reckless

homicide (720 ILCS 5/9--3(a) (West 2000)).  The defendant argued

that the State could not proceed against him on the reckless

homicide charge because he had previously pleaded guilty to the

offense of reckless driving (625 ILCS 5/11--503(a) (West 2000)) for

the same conduct.  The trial court denied the motion, finding that

the prosecution did not violate double jeopardy and that the State

was not estopped from prosecuting the reckless homicide charge.  We

reverse.

	The facts relevant to the appeal are as follows.  On July 16,

2000, the defendant lost control of his motorcycle and collided

with another vehicle on the off-ramp from northbound Interstate 94

to westbound Route 132 in Gurnee.  As a result of the accident, the defendant's passenger, Anna Jaruga, suffered serious head injuries

and died.

	Following the accident, the defendant received a traffic

citation for reckless driving in violation of section 11--503(a) of

the Illinois Vehicle Code (625 ILCS 5/11--503(a) (West 2000)). 

According to the ticket, the defendant violated this section by

"improper stopping in traffic, failure to signal when required,

improper lane usage, [and] traveling at 80 m.p.h. plus in a 55

m.p.h. zone."  The ticket described the location of the offense as

northbound Interstate 94 between mile markers 61 and 70.

	On August 4, 2000, pursuant to a negotiated plea, the

defendant pleaded guilty to the reckless driving offense.  The

defendant was sentenced to six months' probation and fined $250. 

It also appears that the State agreed to nol-pros other traffic

citations that had been issued against the defendant, although the

record does not indicate what additional offenses were alleged in

these citations.

	On September 6, 2000, the defendant was indicted for the

offense of reckless homicide (720 ILCS 5/9--3(a) (West 2000)).  The

indictment alleged that on July 16, 2000, the defendant:

"while acting in a reckless manner, performed acts likely to

cause the death of some individual, in that he operated a ***

motorcycle on the off-ramp from northbound I-94 to westbound

Route 132 in Gurnee *** at a speed which was greater than the

posted speed limit and which was greater than was reasonable

and proper with regard to the existing traffic conditions and

the safety of persons properly upon the roadway, and he left the roadway, causing his motorcycle to strike a 1987 Ford

Econoline van, thereby causing the death of Anna Jaruga, who

was a passenger of said defendant's motorcycle."

	On November 8, 2000, the defendant filed a motion to dismiss

the indictment.  The defendant argued that the indictment arose

from the same facts that were the basis for his conviction of 

reckless driving.  Accordingly, the defendant asserted that the

State was precluded from prosecuting the indictment by the double

jeopardy guarantees of both the United States and Illinois

Constitutions.  U.S. Const., amends. V, XIV; Ill. Const. 1970, art.

I, §10.  The defendant also argued that the State was estopped from

prosecuting the indictment because it had entered into a plea

agreement with him on the reckless driving charge.

	Following a hearing, the trial court denied the motion to

dismiss the indictment.  The trial court found that the reckless

driving and reckless homicide charges arose from separate and

distinct acts committed by the defendant.  The trial court

therefore concluded that the prosecution did not violate double

jeopardy.  The trial court also found that the defendant's earlier

guilty plea on the reckless driving charge did not estop the State

from prosecuting the reckless homicide charge.  Following the

denial of his motion to reconsider, the defendant filed a timely

notice of appeal pursuant to Supreme Court Rule 604(f) (188 Ill. 2d

R. 604(f)).

	The defendant's first contention on appeal is that the

prosecution for reckless homicide is barred by double jeopardy

principles.  The defendant argues that he was placed in jeopardy when he pleaded guilty to the reckless driving charge and that he

may not be prosecuted again for the same criminal offense.  The

defendant asserts that, because reckless driving is a lesser-

included offense of reckless homicide, he may not be prosecuted for

the latter offense.

	Both the United States and Illinois Constitutions provide that

no person shall be put in jeopardy twice for the same criminal

offense.  U.S. Const., amends. V, XIV; Ill. Const. 1970, art. I,

§10.  The double jeopardy clause protects a defendant from (1) a

second prosecution after acquittal; (2) a second prosecution after

conviction; and (3) multiple punishments for the same offense. 

People v. Stefan, 146 Ill. 2d 324, 333 (1992).  The guarantee against double jeopardy expresses "a constitutional policy of

finality for the defendant's benefit."  United States v. Jorn, 400 U.S. 470, 479, 27 L. Ed. 2d 543, 553, 91 S. Ct. 547, 554 (1971).

	As an initial inquiry to our double jeopardy analysis, we must

first determine whether the reckless driving conviction and the

reckless homicide charge arose from the same criminal act.  If the

prosecutions are predicated upon different criminal acts, then no

double jeopardy problem arises.  See Blockburger v. United States, 284 U.S. 299, 304, 76 L. Ed. 306, 309, 52 S. Ct. 180, 182 (1932). 

The defendant asserts that the two charges are predicated upon a

single course of reckless conduct that commenced on Interstate 94

after mile marker 61 and ended when his motorcycle collided with

the van on the off-ramp to westbound Route 132.  The defendant

asserts that there was no change in the nature of his criminal

objective during this time and that there is no distinction between the acts of recklessness that form the basis for the reckless

driving charge and those that form the basis for the reckless

homicide charge.

	The State, on the other hand, asserts that the two charges

against the defendant were based on distinct criminal acts that

occurred in distinct locations on the roadway.  The State notes

that the reckless driving charge was based on improper stopping in

traffic, the failure to signal, improper lane usage, and traveling

at more than 80 miles per hour in a 55 mile- per- hour zone.  The

State argues that the reckless homicide charge involved neither

improper stopping in traffic, improper lane usage, nor improper

signaling.

	In determining whether the defendant's conduct consisted of

single or multiple acts, courts will consider whether the conduct

consists of discrete physical acts.  People v. Harris, 182 Ill. 2d 114, 133-34 (1998).  Our supreme court has explained that a

separate act is " 'any overt or outward manifestation which will

support a different offense.' [Citations.]"  People v. Rodriguez, 169 Ill. 2d 183, 188 (1996).  Although not determinative, relevant

factors to consider in deciding whether the defendant's conduct

constituted separate physical acts include (1) whether the

defendant's acts were interposed by an intervening event; (2) the

time interval between the successive parts of the defendant's

conduct; (3) the identity of the victim; (4) the similarity of the

acts performed; (5) whether the conduct occurred in the same

location; and (6) the prosecutorial intent, as shown by the wording of the charging instruments.  People v. Moss, 274 Ill. App. 3d 77, 83 (1995).

	Turning to this case, the indictment charging the defendant

with reckless homicide alleges that the defendant acted in a

reckless manner by operating his motorcycle at a speed greater than

the posted speed limit and greater than what was reasonable with

regard to the existing traffic conditions and the safety of persons

on the roadway.  The defendant's speeding was also a basis for his

citation for reckless driving.  It therefore appears that the

reckless acts charged in both offenses rely, in part, on the

defendant's act of operating his motorcycle at an excessive speed.

	After careful consideration, we do not believe that the

defendant's recklessness in operating his vehicle at an excessive

speed can be divided into separate and discrete physical acts. 

Although the State asserts that the speeding alleged in the

reckless driving charge took place on the highway and the speeding

alleged in the reckless homicide charge took place on the off-ramp

to the highway, the State points to no intervening event that could

be viewed as separating this reckless conduct into two separate

acts.  Rather, it appears that the defendant's conduct occurred

over a continuous interval of time without an intervening event or

interruption.  Moreover, we note that the off-ramp where the

collision occurred is located between mile markers 61 and 70 on

northbound Interstate 94, the same location that the defendant was

charged with reckless driving.  It would therefore appear that the

misconduct alleged in the reckless driving charge is necessarily

encompassed within the misconduct cited in the reckless homicide charge.  We therefore reject the State's assertions that the

defendant committed two different acts of recklessness simply

because he operated his vehicle at an excessive speed on both the

expressway and its off-ramp.

	Notwithstanding the fact that both charges rely on the

defendant's act of speeding, the State asserts that the

recklessness alleged in the two charges is distinct because the

remaining conduct alleged in the charges was different.  For

example, the reckless driving charge alleged that the defendant

improperly stopped his vehicle on the roadway and improperly

changed lanes, while the reckless homicide charge alleged that the

defendant caused his vehicle to leave the roadway.  Although we

acknowledge that the State has alleged that the defendant committed

various wrongful acts between mile marker 61 and the collision,

these individual events were alleged as part of a greater course of

reckless conduct.  The State did not cite the defendant for each

separate traffic violation but instead chose to rely on the

entirety of the conduct to charge the defendant for his reckless

course of conduct in operating his vehicle.

	Because the State relied on the entire course of conduct in

formulating the charge, we reject the State's assertions that the

defendant's conduct can be subdivided into separate and discrete

acts.  As noted above, the record contains no indication that there

was an intervening event or period of time that separated the

various reckless acts.  Rather, it appears that the State has

alleged a single course of reckless conduct.  Indeed, both charges

rely on the defendant's act of speeding to establish his reckless conduct.  We therefore conclude that the same criminal act is

alleged in the reckless driving and reckless homicide charges.

	Having determined that the reckless driving and reckless

homicide charges are predicated upon the same criminal act, we turn

to the next portion of our double jeopardy analysis.  	The United States Supreme Court has long held that a state cannot prosecute a

defendant in successive prosecutions for the same criminal act

under different statutes unless each statute "requires proof of an

additional fact which the other does not."  Blockburger v. United States, 284 U.S. 299, 304, 76 L. Ed. 306, 309, 52 S. Ct. 180, 182 (1932).  The Blockburger test focuses on the statutory elements of each offense.  People v. Mauricio, 249 Ill. App. 3d 904, 906 (1993).  Blockburger prohibits a second prosecution for the same criminal act if one offense has identical statutory elements or is

an included offense of the other.  Mauricio, 249 Ill. App. 3d at 906.  The Blockburger test was most recently reaffirmed by the Supreme Court in United States v. Dixon, 509 U.S. 688, 125 L. Ed. 2d 556, 113 S. Ct. 2849 (1993).  Under Dixon, the sole guide to evaluatinge whether the offenses are the same for the purposes of

double jeopardy is the statutory definition of each offense; no

inquiry is made into the conduct giving rise to the offenses. 

Dixon, 509 U.S. at 710-12, 125 L. Ed. 2d at 577-78, 113 S. Ct. at 2863-64.

	A defendant commits the offense of reckless driving when he

"drives any vehicle with a willful or wanton disregard for the

safety of persons or property."  625 ILCS 5/11--503(a) (West 2000). 

Meanwhile, a defendant commits reckless homicide when he unintentionally causes the death of another by recklessly operating

a motor vehicle in a manner likely to cause death or great bodily

harm.  720 ILCS 5/9--3(a) (West 2000).  The defendant asserts that

reckless driving is a lesser-included offense of reckless homicide

and that his conviction forof the former offense precludes a

subsequent prosecution for the latter offense.  The State responds

that reckless driving is not a lesser- included offense of reckless

homicide because each offense requires proof of a fact that the

other does not.  The State argues that reckless homicide requires

that a death result from the defendant's conduct, whereas reckless

driving does not.  Meanwhile, the State argues that reckless

driving requires proof of willful or wanton conduct, while reckless

homicide only requires proof of recklessness.

	Based upon our examination of the statutory elements of both

charges, we conclude that reckless driving is a lesser-included

offense of reckless homicide for purposes of double jeopardy

analysis.  Both offenses require proof that the defendant operated

his vehicle in a manner that threatened the safety of others. 

Although the offense of reckless driving requires a showing of

"willful and wanton" conduct, while the offense of reckless

homicide requires a showing of reckless conduct, the Criminal Code

of 1961 equates the two mental states.  See 720 ILCS 5/4--6 (West

2000) ("An act performed recklessly is performed wantonly, within

the meaning of a statute using the latter term, unless the statute

clearly requires another meaning"); see also People v. Stropoli, 146 Ill. App. 3d 667, 672-73 (1986); People v. Wolfe, 114 Ill. App. 3d 841, 848-50 (1983).  The only difference between the two offenses is that reckless homicide requires that a death result

from the defendant's conduct, while reckless driving does not. 

Therefore, it appears that the proof of the offense of reckless

driving is necessarily entailed within the proof of reckless

homicide.

	Although no Illinois courts have previously considered the

precise question before us, we find support for our conclusion that

reckless driving is a lesser-included offense of reckless homicide

in Chikitus v. Shands, 373 So. 2d 904 (Fla. 1979).  The facts of Chikitus are remarkably similar to those in this case.  In Chikitus, the defendant was driving an automobile and was involved in an accident resulting in the death of two people.  The defendant was initially charged with the offense of reckless driving. 

Chikitus, 373 So. 2d at 904.  In Florida, the offense of reckless driving is defined using the same statutory language as the

Illinois offense.  See Fla. Stat. Ann. §316.192 (West 2002).  The

defendant pleaded no contest and was convicted of the charge. 

Chikitus, 373 So. 2d at 904.  The defendant was subsequently indicted with the offense of vehicular homicide, an offense that is

defined using the same statutory language as the Illinois reckless

homicide statute (Fla. Stat. Ann. §782.071 (West 2002)).  Chikitus, 373 So. 2d at 904.

	The Supreme Court of Florida held that double jeopardy

principles precluded the prosecution of the defendant on the

vehicular homicide charge for the same criminal act.  Chikitus, 373 So. 2d at 905.  After examining the statutory elements of the two

offenses, the court concluded that the offense of vehicular homicide could not be proved without also proving the elements of

reckless driving.  Therefore, the court held that reckless driving

was a lesser-included offense of vehicular homicide and that double

jeopardy applied to bar a subsequent prosecution for vehicular

homicide when the defendant previously had been convicted of the

charge of reckless driving arising from the same facts.  Chikitus, 373 So. 2d at 905.

	Here, as in Chikitus, jeopardy attached when the defendant pleaded guilty to the reckless driving charge.  The State was

therefore precluded from prosecuting the defendant under a

different criminal offense requiring proof of the same statutory

elements.  Blockburger, 284 U.S. at 304, 76 L. Ed. at 309, 52 S. Ct. at 182.  Based upon our analysis above, and as noted in

Chikitus, proof of the offense of reckless homicide necessarily requires proof of the offense of reckless driving.  Accordingly, we

conclude that double jeopardy precludes the State from prosecuting

the reckless homicide charge and hold that the trial court erred in

denying the defendant's motion to dismiss the indictment.

	In light of our resolution of the double jeopardy issue, we

need not address the other arguments that the defendant raises on

appeal.

	For the foregoing reasons, the judgment of the circuit court

of Lake County is reversed.

	Reversed.

	O'MALLEY and CALLUM, JJ., concur.