NO. 4-02-0274

	IN THE APPELLATE COURT

	OF ILLINOIS

	FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,	)	Appeal from

		Plaintiff-Appellee,			)	Circuit Court of

		v.						)	Champaign County

TED B. GRAY,						)	No. 01CF1310

		Defendant-Appellant.		)

								)	Honorable

								)	Thomas J. Difanis,

								)	Judge Presiding.

_________________________________________________________________

		JUSTICE APPLETON delivered the opinion of the Court:

		In a case separate from this one, No. 00-CF-648 in

Coles County, the State charged defendant, Ted. B. Gray, with

four counts of criminal sexual assault (720 ILCS 5/12-13(a)(1),

(a)(3) (West 1998)) and one count of unlawful possession of a

weapon without a valid firearm owner's identification card (430

ILCS 65/2(a)(1) (West 1998).  The information erroneously alleged

that defendant had committed the sexual assaults entirely within

Coles County.  Discovery suggested that although some of the

sexual assaults occurred in Coles County, most of them occurred

in Champaign County.    

		Pursuant to a plea agreement with the Coles County

State's Attorney, defendant pleaded guilty, in case No. 00-CF-

648, to two counts of criminal sexual assault and to the one

count of unlawful possession of a weapon, and the State dismissed

the remaining two counts of criminal sexual assault.  The Coles

County circuit court sentenced defendant to five years' imprison

ment, among other punishments.

		While defendant was in prison, serving the sentence he received in the Coles County case, the State filed the indictment

in the present case, in the Champaign County circuit court,

charging defendant with five counts of predatory criminal sexual

assault of a child (720 ILCS 5/12-14.1(a)(1) (West 1998)).  Four

of the five counts were based on the same conduct for which

defendant was prosecuted in Coles County.  Pleading double

jeopardy, defendant moved to dismiss those four counts, and the

Champaign County circuit court denied his motion.  Defendant

appeals pursuant to Supreme Court Rule 604(f) (188 Ill. 2d R.

604(f)).  We hold that the prosecution in the present case does

not violate the plea agreement or the constitutional and statu

tory guarantees against double jeopardy.  See U.S. Const.,

amends. V, XIV; Ill. Const. 1970, art. I, §10; 720 ILCS 5/3-4

(West 2000).  Therefore, we affirm the trial court's judgment.  

	I. BACKGROUND

		On November 13, 2000, in case No. 00-CF-648, the Coles

County State's Attorney filed a five-count information against

defendant in the Coles County circuit court.  The first four

counts alleged criminal sexual assault--counts I and II alleging

a violation of section 12-13(a)(3) of the Criminal Code of 1961

(Criminal Code) (720 ILCS 5/12-13(a)(3) (West 1998)) and counts

III and IV alleging a violation of section 12-13(a)(1) (720 ILCS

5/12-13(a)(1) (West 1998)).  The fifth count alleged unlawful

possession of a weapon (a count irrelevant to the issue of double

jeopardy).

		Specifically, count I stated that in approximately 1998, in Coles County, defendant sexually penetrated his daugh ter, A.M.G., by placing his mouth over her vagina and his fingers

in her vagina.

		Count II stated that in 1998, in Coles County, he did

the same to his other daughter, J.L.G.

		Count III stated that in 1998, in Coles County, he

forced J.L.G. to place her mouth on his penis and stimulate him.

		Count IV stated that in 1998, in Coles County, he

forced A.M.G. to do the same.  Each of those counts specified the

girls' birth dates.  A.M.G. was born on May 27, 1987, and J.L.G.

was born on March 25, 1986.

		The Coles County State's Attorney provided defendant

the disclosures required by Supreme Court Rule 412 (188 Ill. 2d

R. 412).  The disclosures included an interview of A.M.G.,

J.L.G., and defendant on November 1, 2000, by Darrell Cox, a

detective of the Coles County sheriff's department.  A.M.G. told

Cox that in 1998, when she was 11, she and J.L.G. were with

defendant under a bridge near Sadorus (in Champaign County). 

There, at defendant's direction, each of them performed fellatio

on him.  A.M.G. said that on another occasion, in their home in

Coles County, defendant touched her vagina with his fingers and

put his mouth on her vagina.    

		In her interview with Cox, J.L.G. also recounted the

incident under the bridge.  She said that somewhere in the

countryside near Sadorus, she, A.M.G., and defendant went under a

bridge, where, in J.L.G.'s words, "He made us suck on *** his

dick."  She also said defendant had put his mouth on her "private parts" in his bedroom.

		After Cox advised him of his Miranda rights (see Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966)), defendant admitted having A.M.G. and J.L.G. touch

his penis under a bridge north of Sadorus in 1998, while they

were on a fishing trip.  He also admitted putting his mouth and

tongue on J.L.G's vagina in his residence at Sadorus.  He in

sisted, however, that he never penetrated J.L.G. or A.M.G.,

either with an object or with any part of his body.  According to

defendant, all of those sexual acts occurred within a span of 12

to 18 months, from 1997 to 1998.  On July 4, 1998, he, his wife,

and his daughters moved from Sadorus to Arcola, in Coles County. 

Only one incident happened in Coles County, when he touched

A.M.G.'s breasts as she lay in bed.

		Defendant entered into a plea agreement with the Coles

County State's Attorney, whereby he agreed to plead guilty to

counts I, II, and V and the State agreed to dismiss counts III

and IV and recommend that any incarceration not exceed one year. 

On June 27, 2001, after his guilty plea but before sentencing,

defendant received a presentence report, which stated:  "Defen

dant appears to have Class X felony charges being sought out of

Champaign County for predatory sexual assault of a child."  Until

then, defendant was unaware that the Champaign County State's

Attorney intended to prosecute him.   

		On July 2, 2001, in the Coles County circuit court,

defendant filed a "Motion to Supplement Record in Support of Plea

and Alternatively for Leave to Withdraw Plea."  In that motion, defendant stated:  "[T]he People's discovery indicated that a

number of the acts alleged in [c]ounts I through IV took place in

Champaign County rather than Coles County."  He acknowledged that

in pleading guilty to counts I, II, and V, he had knowingly and

intelligently waived any objection to the improper venue. 

According to the motion, defendant's attorney spoke with Cham

paign County Assistant State's Attorney William Gaston before

defendant pleaded guilty.  At that time, Gaston represented to

defendant's attorney that the Champaign County State's Attorney

was "not then contemplating any charges against [d]efendant." 

Later, upon receiving the presentence report, defendant learned

that the Champaign County State's Attorney was indeed contemplat

ing filing charges against him.  

		Defendant explained in his motion:

			"Defendant does not wish to withdraw his

plea herein if he be allowed to supplement

the factual record in support thereof in

order that his [c]onstitutional rights

against double jeopardy be fully protected

should Champaign County seek prosecution

based in whole or part upon the very acts

underpinning some of his [c]ounts herein; 

[h]owever[,] in the event this [c]ourt re

fuses his request to supplement the record to

reflect the foregoing, under the current

circumstances, the only other means of pro

tecting [d]efendant's right against double jeopardy may be to move to withdraw his

plea."

Accordingly, he requested leave to supplement the record support

ing his guilty plea by adding the State's disclosures.  Alterna

tively, he requested leave to withdraw his guilty plea.  The

record does not appear to indicate whether the Coles County

circuit court ruled on the motion.               

		On July 3, 2001, pursuant to the plea agreement, the

Coles County circuit court entered judgment on counts I, II, and

V and sentenced defendant to imprisonment for five years, among other punishments.  The State dismissed counts III and IV.  

		On September 6, 2001, in the present case, the Cham

paign County State's Attorney filed a five-count indictment

against defendant in the Champaign County circuit court.  All

five counts charged him with predatory criminal sexual assault of

a child (720 ILCS 5/12-14.1(a)(1) (West 1998)).  Each of the

counts alleged that defendant was 17 years of age or older and

his daughters were under 13 years of age when he victimized them. 

		Count I stated that in the summer of 1998, in Champaign

County, defendant sexually penetrated A.M.G. by putting his penis

in her mouth.  

		Count II stated that in the summer of 1998, in Cham

paign County, defendant sexually penetrated J.L.G. by putting his

penis in her mouth, "while under a bridge."

		Count III stated that in the summer of 1998, in Cham

paign County, defendant sexually penetrated J.L.G. by putting his

penis in her mouth, "while in the family home."

		Count IV stated that in the summer of 1998, in Cham

paign County, defendant sexually penetrated J.L.G. by putting his

mouth on her sex organ, "while in the family home."

		Count V alleged that in July, 1999, in Champaign

County, defendant sexually penetrated A.M.G. by placing his

finger in her sex organ.

		In its brief in this appeal, the State says that "the

Coles County charges and the Champaign County charges are based

on the same acts" and that "these acts occurred in Champaign

County."  (Apparently the date "1999," in count V, is an error.)

		On January 15, 2002, in the present case, defendant

filed a motion to dismiss counts I, II, IV, and V on the ground

of double jeopardy.  (Count III, he admits, alleges a different

act than any of the counts in the Coles County case.)  The

Champaign County circuit court denied the motion because, in the

court's words, "the Coles County prosecutor [could not] bar the

Champaign County State's Attorney from proceeding on prosecuting

separate and distinct offenses."  

		This appeal followed.

	II. ANALYSIS

	A. Standard of Review

		Defendant states that "the proceedings and ruling in

the trial court were based upon the record, discovery[,] and

pleadings in this and the Coles County prosecution."  As the

State does not disagree, we will review this case de novo.  See People v. Daniels, 187 Ill. 2d 301, 307, 718 N.E.2d 149, 155 (1999), cert. denied, 529 U.S. 1088, 146 L. Ed. 2d 644, 120 S. Ct. 1723 (2000); People v. Burnette, 325 Ill. App. 3d 792, 806, 758 N.E.2d 391, 404 (2001); People v. Johnson, 304 Ill. App. 3d 599, 601, 710 N.E.2d 161, 163 (1999), appeal denied, 186 Ill. 2d 579, 723 N.E.2d 1166 (1999).

	B. Section 3-4(a)(1)

		Defendant contends that sections 3-4(a) and (b) of the

Criminal Code (720 ILCS 5/3-4(a), (b) (West 2000)) bar the State

from prosecuting him on counts IV and V in the present case.  The

purpose of section 3-4 is to codify rules against double jeop

ardy.  People v. Mueller, 109 Ill. 2d 378, 383, 488 N.E.2d 523, 525 (1985).  Section 3-4(a)(1) provides as follows:

		     "(a) A prosecution is barred if the

defendant was formerly prosecuted for the same offense, based upon the same facts, if such former prosecution:

				(1) Resulted in *** a convic

tion ***[.]"  (Emphasis added.) 

720 ILCS 5/3-4(a)(1) (West 2000).

If "'the same act or transaction constitutes a violation of two

distinct statutory provisions, the test to be applied to deter

mine whether there are two offenses or only one, is whether each

provision [that is to say, statutory provision] requires proof of an additional fact which the other does not.'"  (Emphasis added.) 

People v. Valentine, 122 Ill. App. 3d 782, 785, 461 N.E.2d 1388, 1390 (1984), quoting Blockburger v. United States, 284 U.S. 299, 304, 76 L. Ed. 306, 309, 52 S. Ct. 180, 182 (1932).  

		In case No. 00-CF-648 in Coles County, by his guilty plea to counts I and II, defendant was convicted of violating

section 12-13(a)(3) of the Criminal Code (720 ILCS 5/12-13(a)(3)

(West 1998)).  That section provides:

			"(a) The accused commits criminal sexual

assault if he or she:

* * *

			(3) commits an act of sexual penetration

with a victim who was under 18 years of age

when the act was committed and the accused

was a family member[.]"  720 ILCS 5/12-

13(a)(3) (West 1998).

In the present case, defendant is charged with violating section

12-14.1(a)(1) of the Criminal Code (720 ILCS 5/12-14.1(a)(1)

(West 1998)).  That section provides:  

			"(a) The accused commits predatory crim

inal sexual assault of a child if:

				(1) the accused was 17 years

of age or over and commits an act

of sexual penetration with a victim

who was under 13 years of age when

the act was committed[.]"  720 ILCS

5/12-14.1(a)(1) (West 1998).  

		Section 12-13(a)(3) requires proof that the accused was

a family member; section 12-14.1(a)(1) does not.  Section 12-

14.1(a)(1) requires proof that the accused was 17 years of age or

older and that the victim was under 13 years of age; section 12-

13(a)(3) does not.  Therefore, defendant is now charged with an offense different from criminal sexual assault, and section 3- 4(a)(1) of the Criminal Code is inapplicable.

		Citing People v. Hamilton, 179 Ill. 2d 319, 324, 688 N.E.2d 1166, 1169 (1997), and People v. Novak, 163 Ill. 2d 93, 643 N.E.2d 762 (1994), defendant urges us to compare the charging

instruments in the present case and case No. 00-CF-648 to deter

mine whether they charge the same offense for purposes of double

jeopardy.  Although counts I and II in case No. 00-CF-648 did not

explicitly say he was 17 years of age or older, defendant argues

those counts necessarily so implied, because they specified his

daughters' birth dates and, from that information, we can infer

it would have been impossible for him to father them unless he

was older than 17 at the time of the offense.  

		In Hamilton, 179 Ill. 2d at 324, 688 N.E.2d at 1169, the supreme court held:  "In determining whether a particular offense is included in a charged offense, *** the proper approach is to examine both the charging instrument and the evidence

adduced at trial."  (Emphasis added.)  Likewise, in Novak, 163 Ill. 2d at 112-13, 643 N.E.2d at 772, the supreme court held that

"[t]he charging instrument approach best serves the purposes of

the lesser included offense doctrine."  (Emphasis added.)  The supreme court never held, in Hamilton and Novak, that the charg ing instruments determine whether a defendant was prosecuted for

the same offense or different offenses for purposes of double

jeopardy.  In fact, double jeopardy was not even an issue in

those cases.  

		Defendant cites People v. Stefan, 146 Ill. 2d 324, 340, 586 N.E.2d 1239, 1248 (1992), in support of his argument that

double jeopardy "bars subsequent prosecution if the government

seeks to rely on conduct for which defendant has already been prosecuted to prove an offense or element thereof."  (Emphasis

added.)  Defendant accurately states the holding of Stefan, but because Stefan derived that holding from Grady v. Corbin, 495 U.S. 508, 109 L. Ed. 2d 548, 110 S. Ct. 2084 (1990), which the

United States Supreme Court later overruled in United States v. Dixon, 509 U.S. 688, 704, 125 L. Ed. 2d 556, 573, 113 S. Ct. 2849, 2860 (1993), the continued vitality of Stefan is in doubt. People v. Benson, 256 Ill. App. 3d 560, 566, 627 N.E.2d 1207, 1211 (1994).  Dixon pointedly rejected the same-conduct rule in favor of the statutory-elements rule in Blockburger.  Dixon, 509 U.S. at 704, 125 L. Ed. 2d at 573, 113 S. Ct. at 2860.  As the

Second District said in Benson, 256 Ill. App. 3d at 566, 627 N.E.2d at 1211:

		"Our supreme court has stated *** that it

will consistently rely upon decisions of the

United States Supreme Court based on

[f]ederal constitutional provisions to inter

pret comparable provisions of the S[s]tate

constitution, unless the language of the

S[s]state constitution or the debates and com

mittee reports of the constitutional conven

tion show that the framers intended a differ

ent construction. [Citation.]  The language

of the double jeopardy clause contained in the [s]tate constitution is quite similar to

that of the fifth amendment to the United

States Constitution, and our supreme court

has relied on the decisions of the United

States Supreme Court to interpret the [s]tate

provision.  [Citations.]  In Stefan, the court concluded that the appellate court in

that case had erroneously relied on supreme

court cases decided prior to Grady and over ruled those cases insofar as they were incon

sistent with Grady.  [Citation.]  We must avoid committing the same error as the appel

late court in Stefan.  Accordingly, we adopt Dixon as controlling."

		"[T]he sole guide to evaluate 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."  (Emphases added.)  People v. Sienkiewicz, 331 Ill. App. 3d 70, 75, 771 N.E.2d 580, 585 (2002), citing Dixon, 509 U.S. at 710-12, 125 L. Ed. 2d at 577-78, 113 S. Ct. at 2863-64.  Using the statutory definitions as our sole guide, we conclude that predatory criminal sexual assault of a

child is an offense different from criminal sexual assault

because each of those offenses has a statutory element that the

other lacks.  See Valentine, 122 Ill. App. 3d at 785, 461 N.E.2d at 1390.

	C. Section 3-4(b)(1)

		Section 3-4(b)(1) of the Criminal Code provides:

		     "(b) A prosecution is barred if the

defendant was formerly prosecuted for a dif

ferent offense ***, if such former prosecu

tion:

				(1) Resulted in *** a convic

tion ***, and the subsequent prose

cution is for an offense of which

the defendant could have been con

victed on the former prosecution;

or was for an offense with which

the defendant should have been

charged on the former prosecution,

as provided in [s]ection 3-3 of

this Code (unless the court ordered

a separate trial of such charge);

or was for an offense which

involves the same conduct, unless

each prosecution requires proof of

a fact not required on the other

prosecution ***[.]"  720 ILCS 5/3-

4(b)(1) (West 2000).

		The supreme court explained in Mueller, 109 Ill. 2d at 383-84, 488 N.E.2d at 525:

		"The prohibition[,] in the first clause of

section 3-4(b)(1)[,] against a subsequent prosecution for a 'different offense' of

which the accused 'could have been convicted'

in an earlier prosecution does no more than

restate the established double[-]jeopardy

principle that acquittal or conviction of one

offense bars a later prosecution for a lesser included offense.  [Citations.]  Thus, the language *** refers not to all other charges

which could have been, but were not, joined

in the initial prosecution, but only those of

which [the defendant] was actually in peril of being convicted in the *** trial."  (Em

phases added.)

		A lesser included offense is a less serious offense

than the one charged.  Hamilton, 179 Ill. 2d at 323, 688 N.E.2d at 1169.  In case No. 00-CF-648, defendant was not in actual

peril of being convicted of predatory criminal sexual assault of

a child because that offense, a Class X felony (720 ILCS 5/12-

14.1(b)(1) (West 1998)), was a more serious offense than the one with which he was charged, criminal sexual assault, a Class 1

felony (720 ILCS 5/12-13(b)(1) (West 1998)).  See 730 ILCS 5/5-8-

1(a)(3), (a)(4) (West 2000).  A defendant cannot be convicted of

an offense with which he or she has not been charged unless it is

a lesser included offense, i.e., a less serious offense included within the one charged.  Hamilton, 179 Ill. 2d at 323, 688 N.E.2d at 1169.  Predatory criminal sexual assault of a child was not a

lesser included offense in case No. 00-CF-648, and therefore section 3-4(b)(1) is inapplicable.  		

		The third clause of section 3-4(b)(1) is inapplicable

because, as we explained, criminal sexual assault and predatory

criminal sexual assault of a child each require proof of a fact

not required by the other.  

		The remaining question is whether the second clause of

section 3-4(b)(1) is applicable.  It references section 3-3(b) of

the Criminal Code, which provides:  

			"If the several offenses are known to

the proper prosecuting officer at the time of

commencing the prosecution and are within the

jurisdiction of a single court, they must be

prosecuted in a single prosecution *** if

they are based on the same act."  720 ILCS

5/3-3(b) (West 2000). 

"These provisions for compulsory joinder were intended to prevent

successive prosecutions which amount to harassment of a defendant

and which were a means of hedging against the risk of an unsympa

thetic jury at the first trial."  People v. Kennedy, 161 Ill. App. 3d 197, 199, 514 N.E.2d 251, 252 (1987).  Section 3-3

"'establish[es] an addition to the grounds of double jeopardy in

this [s]tate.'"  People v. Thomann, 197 Ill. App. 3d 516, 518, 554 N.E.2d 755, 757 (1990), quoting Ill. Ann. Stat., ch. 38, par.

3-4, Committee Comments, at 127 (Smith-Hurd 1989).

		The State argues that the present prosecution is not

"for an offense with which the defendant should have been charged

on the former prosecution, as provided in [s]ection 3-3" (see 720 ILCS 5/3-4(b)(1) (West 2000)), because the Coles County State's

Attorney could not "properly initiate charges for offenses that

[did] not occur in his county."  The State cites our decision in

People v. Mueller, 130 Ill. App. 3d 385, 474 N.E.2d 434 (1985), aff'd, 109 Ill. 2d 378, 488 N.E.2d 523 (1985).  

		In Mueller, 130 Ill. App. 3d at 386, 474 N.E.2d at 435, the defendant shot and killed two men in Scott County.  He later

loaded the bodies into the back of his pickup truck, drove to

Cass County, and dumped them into a creek.  Mueller, 130 Ill. App. 3d at 386, 474 N.E.2d at 435.  The Scott County State's

Attorney charged the defendant with murder, but, on the defen

dant's motion, the murder trial was held in Sangamon County. 

Mueller, 130 Ill. App. 3d at 386, 474 N.E.2d at 435.  The defen dant testified he had killed the men in self-defense, and the

Sangamon County jury found him not guilty of murder.  Mueller, 130 Ill. App. 3d at 386, 474 N.E.2d at 435.  After the acquittal

in Sangamon County, the Cass County State's Attorney charged the

defendant with concealment of homicidal deaths.  Mueller, 130 Ill. App. 3d at 386, 474 N.E.2d at 435.

		The defendant argued that section 3-4(b)(1) of the

Criminal Code barred the prosecution in Cass County because "'the

subsequent prosecution [was] for an offense of which the defen

dant could have been convicted on the former prosecution.'" 

Mueller, 130 Ill. App. 3d at 387, 474 N.E.2d at 436, quoting Ill. Rev. Stat. 1983, ch. 38, par. 3-4(b)(1).  We disagreed with the

defendant for the following reason:

		"The Scott County State's Attorney could not have properly instituted charges against

defendant for the offenses of concealment

committed in Cass County.  [Citation.]  Since

defendant could not have been properly

charged with this offense, he could not have

been convicted of it in the prior prosecution

for murder."  Mueller, 130 Ill. App. 3d at 389, 474 N.E.2d at 437.

		By the same reasoning, the Coles County State's Attor

ney could not "properly" commence a prosecution against defendant

for crimes he had committed in Champaign County.  See 720 ILCS

5/1-6(a) (West 2000); People v. Gallegos, 293 Ill. App. 3d 873, 879, 689 N.E.2d 223, 226 (1997).  As defendant correctly points

out, venue is not jurisdictional.  People v. Dunn, 52 Ill. 2d 400, 402, 288 N.E.2d 463, 464 (1972); People v. Goulet, 52 Ill. App. 3d 609, 611, 367 N.E.2d 1045, 1047 (1977).  The State need

not even prove that the offense occurred in a particular county. 

720 ILCS 5/1-6(a) (West 2000).  By pleading guilty or failing to

object before trial, a defendant waives, i.e., forfeits, any objection to the improper venue, and the circuit court can

thereafter sentence the defendant for the crime, even though the

defendant committed the crime in a county other than that in

which the court sits.  Dunn, 52 Ill. 2d at 402, 288 N.E.2d at 464; Goulet, 52 Ill. App. 3d at 611, 367 N.E.2d at 1047; 720 ILCS 5/1-6(a) (West 2000).  

		The question under section 3-3(b), however, is whether

the Coles County State's Attorney was the "proper prosecuting officer at the time of commencing the prosecution" (emphasis added) (see 720 ILCS 5/3-3(b) (West 2000))--before defendant waived

his objection to the improper venue.  We agree with defendant

that both the Coles County State's Attorney and the Champaign

County State's Attorney were agents of a single principal:  the

State or the People.  See People v. Starks, 106 Ill. 2d 441, 448- 49, 478 N.E.2d 350, 353-54 (1985).  It does not follow, however,

that both State's Attorneys were the "proper prosecuting officer"

to commence a prosecution, regardless of the locus of the of

fense.  If Coles County was an improper venue, the State's

Attorney of that county could not logically have been the "proper

prosecuting officer."  Therefore, the second clause of section 3-

4(b)(1) is inapplicable.

		One might argue that letting the Champaign County

State's Attorney prosecute defendant would defeat the purpose of

section 3-3(b).  By keeping one of the charges in reserve, the

State might have been "hedging against the risk" that the Coles

County circuit court would be too lenient.  See Kennedy, 161 Ill. App. 3d at 199, 514 N.E.2d at 252.  Defendants can protect

themselves from this situation, however, by (1) not pleading

guilty to committing an offense in a county unless they did

indeed commit the offense in that county and (2) objecting to the

improper venue.

	D. The Plea Agreement

		Defendant argues that because the Coles County State's

Attorney was an agent of the State when heit concluded the plea

agreement with defendant, the State cannot violate that agreement "simply by finding another of its representatives willing to

prosecute the same conduct in a different county."  In support of that contention, defendant cites only Starks.  In Starks, 106 Ill. 2d at 444, 478 N.E.2d at 351, the prosecutor promised to

dismiss a charge of armed robbery if the defendant passed a

polygraph test.  The defendant passed the test, but the State's

Attorney refused to dismiss the charge.  Starks, 106 Ill. 2d at 444, 478 N.E.2d at 351.  The supreme court held that if the

prosecutor did indeed enter into such an agreement, the State's

Attorney was bound by it and had to dismiss the charge.  Starks, 106 Ill. 2d at 449, 478 N.E.2d at 354.  The supreme court never

held, in Starks, that an agreement not to prosecute a defendant for a specific offense bars the State from prosecuting the defendant for a different offense based on the same conduct.  Nor does defendant cite any authority supporting that proposition. 

In his recitation of facts in his brief, defendant states only that the State agreed not to prosecute him for two counts of

criminal sexual assault.  The State appears to have fulfilled

that agreement.  Predatory criminal sexual assault of a child is

a different offense, even though it is based on the same conduct. 

	III. CONCLUSION

		For the foregoing reasons, we affirm the trial court's

judgment.

		Affirmed.

		MYERSCOUGH, P.J., and KNECHT, J., concur.