THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSEPH TRIMARCO, Defendant-Appellant, 364 Ill. App. 3d 549

PRESIDING JUSTICE GROMETER delivered the opinion of the court: Defendant, Joseph Trimarco, appeals from an order denying his motion to dismiss the State’s two-count petition to revoke his probation. Defendant contends that the trial court erred because one charge forming the basis of the petition to revoke was nol-prossed, and, following a jury trial, defendant was acquitted of the other charge. Given the outcome of the jury trial, defendant claims that, at the revocation hearing, double jeopardy precludes the State from essentially prosecuting him again for the same charges.

For the reasons that follow, we dismiss this appeal for lack of jurisdiction. On December 9, 2002, defendant pleaded guilty to unlawful possession of cannabis (720 ILCS 550/4(b) (West 2002)), and he was sentenced to 12 months of probation. One condition of defendant’s probation provided that he had to obey all state and federal laws and local ordinances. The State subsequently petitioned to revoke defendant’s probation, contending that, on October 19, 2003, defendant was driving while under the influence (DUI), in violation of

section 11 — -501 of the Illinois Vehicle Code (Code) (625 ILCS 5/11 — - 501 (West 2002)), and driving while his driving privileges were suspended, in violation of

section 6 — 303 of the Code (625 ILCS 5/6— 303 (West 2002)). Subsequently, following a jury trial, defendant was acquitted of DUI, and the State nol-prossed the charge of driving with suspended driving privileges. Defendant moved to dismiss the State’s petition to revoke his probation, claiming that, pursuant to People v. Grayson, 58 Ill. 2d 260 (1974), he would be subjected to double jeopardy if the State used the acquitted and nol-prossed charges as the basis to revoke his probation. The trial court denied defendant’s motion and never ruled on the petition to revoke.

Defendant now appeals the order denying his motion to dismiss, contending that this court’s jurisdiction over his appeal is governed by Supreme Court Rule 604(f) (210 Ill. 2d R. 604(f)). Although neither party questions this court’s jurisdiction, we have a duty to examine our jurisdiction sua sponte and to dismiss an appeal if jurisdiction is lacking. In re Alexis H., 335 Ill. App. 3d 1009, 1011 (2002). Generally, subject to certain exceptions, appellate courts do not have jurisdiction to review judgments, orders, or decrees that are not final. People v. Smith, 338 Ill. App. 3d 254, 256 (2003).

However, Rule 604(f), the rule under which defendant seeks to appeal, is an exception to this rule {Smith, 338 Ill. App. 3d at 256), and it provides as follows: “The defendant may appeal to the Appellate Court the denial of a motion to dismiss a criminal proceeding on grounds of former jeopardy.” 210 Ill. 2d R. 604(f). At issue in this case is whether a probation revocation proceeding is a “criminal proceeding” as that term is used in Rule 604(f). When interpreting a supreme court rule, we must ascertain and give effect to the supreme court’s intent. In re Marriage of Sproat, 357 Ill. App. 3d 880, 881 (2005).

In deciding what our supreme court intended, we first should examine the language used in the rule and consider each part of the rule in relation to the rest of the rule. Sproat, 357 Ill. App. 3d at 881. We also should consider the reason and necessity for the rule, the evil to be remedied, and the rule’s purpose. Sproat, 357 Ill. App. 3d at 881. Because construction of a supreme court rule presents a question of law, our review is de novo. People v. Roberts, 214 Ill. 2d 106, 116 (2005). Our supreme court has considered whether probation revocation proceedings are civil or criminal.

On one such occasion, in a case factually similar to this case, our supreme court arguably suggested that probation revocation proceedings are “criminal in nature.” Grayson, 58 Ill. 2d at 265. In Grayson, the defendant pleaded guilty to armed robbery and was sentenced to five years’ probation. Grayson, 58 Ill. 2d at 261. Approximately one year later, the defendant was indicted for a second armed robbery, and, following a bench trial, the defendant was acquitted of that offense. On the basis of the second armed robbery, the State petitioned to revoke the defendant’s probation.

The trial court revoked the defendant’s probation, basing its decision on the testimony of the same witnesses who testified at the defendant’s second armed robbery trial, and the defendant appealed. On appeal, the defendant contended that the State was precluded from seeking to revoke his probation based on the second armed robbery. Grayson, 58 Ill. 2d at 262. Our supreme court agreed. Grayson, 58 Ill. 2d at 265.

In reaching that conclusion, the court observed that proceedings may be civil in form but criminal in nature, and that “the individual facing probation revocation may lose his liberty just as swiftly and surely as a defendant in a criminal case.” Grayson, 58 Ill. 2d at 265. More recently, in People v. Lindsey, 199 Ill. 2d 460, 467 (2002), our supreme court determined that probation revocation proceedings are civil proceedings. In Lindsey, the defendant was placed on sex-offender-specific intensive probation for 4 years and sentenced to 364 days of work release. Lindsey, 199 Ill. 2d at 461.

Under the terms of the defendant’s work release, he was to be confined in a public building and released only for public service work and to attend counseling. After the defendant signed out of confinement at unauthorized times, the State petitioned to revoke his probation. At the hearing on the State’s petition to revoke, the State called the defendant as an adverse witness. The trial court subsequently revoked the defendant’s probation and sentenced him. On appeal to our supreme court, the defendant argued, among other things, that the State violated his right against self-incrimination pursuant to

article I,

section 10, of the Illinois Constitution (Ill. Const. 1970, art. I, § 10). Lindsey, 199 Ill. 2d at 462. Specifically, the defendant claimed that, at the revocation hearing, the State could not call him as an adverse witness to testify against himself. Lindsey, 199 Ill. 2d at 462. In addressing this issue, our supreme court first noted that the privilege against self-incrimination attaches when a defendant is compelled to testify against himself in a criminal case. Lindsey, 199 Ill. 2d at 462.

Thus, a necessary precursor to the application of the right against self-incrimination was the determination of whether probation revocation proceedings are criminal proceedings. Our supreme court, without any limitation, determined that “a probation revocation proceeding is a civil proceeding,” and, thus, the defendant’s right not to testify against himself was not violated when the State called him as an adverse witness during the probation revocation hearing. Lindsey, 199 Ill. 2d at 467, 471.

In reaching this conclusion, our supreme court relied on two cases that the United States Supreme Court resolved in the context of the fifth amendment to the United States Constitution (U.S. Const., amend. V). See Minnesota v. Murphy, 465 U.S. 420, 79 L. Ed. 2d 409, 104 S. Ct. 1136 (1984); Gagnon v. Scarpelli, 411 U.S. 778, 36 L. Ed. 2d 656, 93 S. Ct. 1756 (1973). In both of those cases, the Supreme Court observed that a probation revocation proceeding is not a criminal proceeding or a stage in a criminal prosecution. Murphy, 465 U.S. at 435 n.7, 79 L. Ed. 2d at 425 n.7, 104 S.

Ct. at 1146 n.7; Gagnon, 411 U.S. at 782, 36 L. Ed. 2d at 661-62, 93 S. Ct. at 1759-60. Our supreme court then noted that several Illinois appellate courts had relied on both Murphy and Gag-non to conclude that probation revocation proceedings are civil proceedings. Lindsey, 199 Ill. 2d at 465 (and cases cited therein). Here, even assuming that “criminal in nature” can be equated with “criminal proceeding,” it is clear that Lindsey, not Grayson, controls.

Indeed, Lindsey went so far as to assert that Grayson actually “did not suggest that probation revocation proceedings should be considered criminal in nature.” Lindsey, 199 Ill. 2d at 466-67. In any event, the Lindsey court stated: “Grayson [does not] persuade us to depart from the well-reasoned decisions of Murphy and our appellate court. Accordingly, we hold that a probation revocation proceeding is a civil proceeding.” Lindsey, 199 Ill. 2d at 467. Given the fact that the drafters of Rule 604(

f) have determined that probation revocation proceedings are civil proceedings, we conclude that defendant cannot appeal, pursuant to Rule 604(f), the denial of his motion to dismiss the State’s petition to revoke his probation, because the drafters of Rule 604(

f) specifically limited the rule’s application to criminal proceedings. Thus, we lack jurisdiction to consider defendant’s appeal under Rule 604(f). See, e.g., People v. Schram, 283 Ill. App. 3d 1056, 1061 (1996) (in case where defendant appealed under Rule 604(f), appellate court lacked jurisdiction to consider contentions that did not concern double jeopardy). As a final matter, we mention that we are mindful of People v. Snell, 357 Ill. App. 3d 491 (2005), which defendant moved to cite as additional authority. In Snell, a case factually similar to this case, the reviewing court indicated that the defendant appealed pursuant to Rule 604(

f) after the trial court revoked his probation and before it sentenced him. Snell, 357 Ill. App. 3d at 493. Although the reviewing court never addressed whether Rule 604(

f) vested it with jurisdiction over the defendant’s appeal, we believe that jurisdiction in Snell lay under Supreme Court Rule 604(b), not Rule 604(f), because the defendant appealed after the trial court revoked his probation. 210 Ill 2d R. 604(b) (stating that a defendant may appeal an order revoking probation); 730 ILCS 5/5 — 6—4(g) (West 2002) (providing that a judgment revoking a defendant’s probation is a final appealable order). As the trial court here has not ruled on the petition to revoke defendant’s probation, we cannot exercise jurisdiction over defendant’s appeal pursuant to Rule 604(b).

We now address the points raised by the dissent. The dissent asserts that we are not bound by the statement in Lindsey that probation revocation proceedings are civil, because that statement was dicta. In fact, however, that statement was just the opposite; it was the court’s explicit holding. Lindsey, 199 Ill. 2d at 467 (“we hold that a probation revocation proceeding is a civil proceeding”). Of course, even if the statement were dicta, it still may be binding. See Woodstock Hunt Club v. Hindi, 305 Ill.

App. 3d 1074, 1076 (1999) (“obiter dictum of a court of last resort may be tantamount to a decision and therefore binding in the absence of a contrary decision of that court”). In any event, because the supreme court has explicitly stated that “a probation revocation proceeding is a civil proceeding,” we are simply unable to now declare that, for the purposes of Rule 604(

f) or for any other purpose, a probation revocation proceeding is a criminal proceeding. The dissent further asserts that we must follow Grayson. However, as we noted, Lindsey expressly determined that Grayson did not establish that probation revocation proceedings are criminal, or even “criminal in nature.” Thus, we clearly cannot follow Grayson to hold that a probation revocation proceeding is a criminal proceeding. That said, Lindsey clearly did not overrule Grayson, instead deeming it “narrowly tailored to the facts of that case.” Lindsey, 199 Ill. 2d at 466.

As a result, we accept the viability of the holding in Grayson, i.e., that in a probation revocation proceeding (despite its civil nature), the State is precluded from seeking a revocation on the basis of an offense of which the defendant has been acquitted. Thus, in this case, we would be bound to follow that holding, if only we had jurisdiction to do so. Unfortunately, although Grayson and this case are similar factually, they differ procedurally. The Grayson court had jurisdiction because the defendant appealed the revocation of his probation. As we noted, Rule 604(

b) expressly authorizes an appeal from such an order. Accordingly, if defendant here had appealed the revocation of his probation, we would be vested with jurisdiction under Rule 604(b), and we would resolve the appeal in light of Grayson. However, defendant appealed the denial of his motion to dismiss a petition to revoke his probation. Rule 604(

b) does not authorize an appeal from such an order, so defendant seeks to appeal under Rule 604(f). But that rule applies only in “a criminal proceeding,” and Lindsey, despite Grayson, deemed a probation revocation proceeding a civil proceeding. Thus, once again, we lack jurisdiction over this appeal. Finally, the dissent asserts that we have failed to address the practical implications of our holding. We do not necessarily disagree with the dissent’s concerns in this regard. However, our holding is simply in accordance with the supreme court’s holding.

If that court chooses to alter its holding, for the reasons urged by the dissent or for any other reason, we of course will follow suit. But until then, no matter how unwise one might deem it, we have no authority to disregard an express holding of the supreme court. For these reasons, we dismiss the appeal from the circuit court of Du Page County. Appeal dismissed. BYRNE, J., concurs. We note that, 10 years before Lindsey, the supreme court itself questioned the viability of that holding. See In re Nau, 153 Ill. 2d 406, 427-28 (1992).

Again, however, that court has not overruled Grayson, and we cannot do so on our own.