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People v. Liebling

OPINION FILED MARCH 15, 1976.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,

v.

BEN LIEBLING, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES C. MURRAY, Judge, presiding.

MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

On January 20, 1975, the circuit court granted the motion of Ben Liebling (defendant) to dismiss certain indictments against him because of the statute of limitations. The State has appealed, Supreme Court Rule 604(a)(1); Ill. Rev. Stat. 1973, ch. 110A, Rule 604(a)(1).

There are five separate indictments here involved. The People have appealed from the orders of dismissal concerning only these counts:

Indictment Counts

73-1626 5, 6 73-2269 1 73-2270 1, 13, 14, 15, 16, 17 73-2271 10, 11, 12, 13 73-2272 13, 14, 15, 16, 17

These counts of the various indictments all involve two crimes: bribery (Ill. Rev. Stat. 1967, ch. 38, par. 33-1(d)) and conspiracy to commit bribery (Ill. Rev. Stat. 1967, ch. 38, par. 8-2). All counts cite the revised statutes of 1967 which declare the law as it existed when the alleged offenses were committed. Under these statutes, both of these offenses were misdemeanors and not felonies. (Ill Rev. Stat. 1967, ch. 38, pars. 2-7 and 2-11.) See People v. Bain, 359 Ill. 455, 470, 471, 195 N.E. 42, and People v. Prather, 16 Ill. App.3d 376, 306 N.E.2d 361.

The statute of limitations, as it existed when the alleged offenses were committed, provided that prosecutions "must be commenced within 3 years after the commission of the offense if it is a felony, or within one year and 6 months after its commission if it is a misdemeanor." The statute today remains unchanged. Compare Ill. Rev. Stat. 1967, ch. 38, par. 3-5, to the same paragraph in Ill. Rev. Stat. 1973.

It is agreed that the last overt act regarding commission of any of the offenses here occurred on December 31, 1971. The Unified Code of Corrections took effect on January 1, 1973. (Ill. Rev. Stat. 1973, ch. 38, par. 1008-6-1.) This was less than 18 months after the last overt act. The indictments were all returned on July 26, 1973, more than 18 months after the last overt act.

However, the Unified Code of Corrections, effective prior to expiration of the 18-month statute of limitations, and a series of accompanying amendments to the Criminal Code, all effective on January 1, 1973, reclassified bribery as a Class 4 felony (Ill. Rev. Stat. 1973, ch. 38, par. 33-1). The law concerning conspiracy as thus amended provides, aside from exceptions not pertinent here, that defendants "shall not be sentenced in excess of a Class 4 felony." Ill. Rev. Stat. 1973, ch. 38, par. 8-2.

It is the People's theory, as expressed in its brief, that the legislature had the prerogative of extending a criminal statute of limitations which had not already barred the prosecution at the time of the extension and that the legislature exercised this legal power to enlarge the statute of limitations by passage of the Illinois Unified Code of Corrections. The defendant responds that the order appealed from was in compliance with the express terms of the applicable statute of limitations; the offenses here involved are misdemeanors under applicable law and it was not the intention of the legislature to extend the general period of limitations by enactment of the Unified Code of Corrections or to apply retroactively the changes of law made in the Unified Code.

• 1 It is agreed by the parties that the legislature had power to extend a limitation period provided that the extension was accomplished prior to the expiration of the original period. This principle has been repeatedly expressed by the Illinois courts. (People v. Anderson, 53 Ill.2d 437, 440, 292 N.E.2d 364, citing Orlicki v. McCarthy, 4 Ill.2d 342, 122 N.E.2d 513, and People v. Isaacs, 37 Ill.2d 205, 229, 226 N.E.2d 38.) In Anderson, the Supreme Court used the following language (53 Ill.2d 437, 440):

"There appears also to be widespread agreement that a legislative body can extend the period of limitations as to criminal offenses which occurred prior to the effective date of the change without violating the constitutional prohibition against ex post facto laws, so long as the extended period does not apply to any case in which the accused has acquired, as of the effective date of the change, a right to acquittal through the running of the original statute."

Although conceding this general principle, defendant urges strongly that permitting reclassification of the offenses from misdemeanors to felonies in effect amounts to a retroactive change of the law which is contrary to his rights. In this case we are assisted by a detailed order of dismissal prepared and filed by the trial judge in which he set forth in scholarly detail the facts here involved and his legal reasons for dismissing the indictments. We cannot agree with the result reached by the learned trial court.

The trial court stated in its order that there were no cases in Illinois covering the precise point here involved. Our research has disclosed no such authority. The trial court cited certain theories by way of analogy which will hereinafter be considered. However, it seems to us that the correct result is indicated by a number of factors. The legislature did not accomplish the extension of the statute of limitations by an amendment to the limitations statute. Instead it extended the limitation period by reclassification of the pertinent offenses from misdemeanors to "Class 4" felonies; a designation previously unknown in the law of Illinois. Since we have agreed that the legislature had complete authority expressly to ...


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