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People v. Papproth

OPINION FILED DECEMBER 28, 1977.

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

v.

DENNIS PAPPROTH, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Clinton County; the Hon. ARTHUR G. HENKEN, Judge, presiding.

MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

Defendant, Dennis L. Papproth, was found guilty after a bench trial of the offenses of speeding and driving a motor vehicle while his license was revoked (Ill. Rev. Stat. 1975, ch. 95 1/2, pars. 11-601(b) and 6-303(a)). The court fined him $25 and court costs on each offense. He appeals the conviction for driving while his license was revoked (Ill. Rev. Stat. 1975, ch. 95 1/2, par. 6-303(a)).

Defendant contends that he was not properly found guilty of this offense because the evidence revealed that at all pertinent times he possessed a valid temporary driver's license which was not procured by fraud. We agree.

Before addressing the merits of this case, we must comment on the motion of the State for rescission of appointment of counsel for defendant on appeal, and discuss the State's contention that this case should be dismissed because of defendant's failure to file a post-trial motion. See People v. Hammond (5th Dist. 1977), 48 Ill. App.3d 707, 362 N.E.2d 1361.

• 1 The Office of the State Appellate Defender was appointed to represent defendant. This court initially entered an order granting a motion to rescind that appointment, but that order was vacated February 10, 1977. Some 8 1/2 months elapsed before the State filed the instant motion which was ordered taken with the case. At that time, briefs had been filed by both parties, the case had been set for oral argument and the State had notified this court that it was waiving oral argument. Considering these circumstances, we believe the motion was, and is, moot and need not be considered on its merits.

• 2 The contention of the State that defendant's failure to file a post-trial motion subsequent to his bench trial requires dismissal of this appeal is without merit. It has long been held that a post-trial motion is not necessary in a bench trial to preserve for review questions of the sufficiency of evidence. (People v. Hoffman (1942), 381 Ill. 460, 45 N.E.2d 874; People v. Guynn (1975), 33 Ill. App.3d 736, 338 N.E.2d 239; People v. Larsen (1977), 47 Ill. App.3d 9, 361 N.E.2d 713.) In addition, defendant fully apprised the court of his position with respect to his temporary driver's license and its effect upon the charge at trial.

The relevant facts are as follows. On June 16, 1976, defendant was driving a truck in Clinton County in connection with his job, hauling rock to Carlyle Lake. He was stopped by an Illinois State trooper and ticketed for a speeding violation which the trooper had observed a few days before when he (the trooper) was off duty and traveling in his personal auto. Defendant exhibited a temporary driver's license valid on its face in his own name.

The trooper ran a check with the Secretary of State's office and as a result was advised that defendant had a "suspended" Illinois driver's license. A second check produced identical results, and the trooper ticketed him for driving with a suspended license in violation of section 6-303 of the Illinois Vehicle Code (Ill. Rev. Stat. 1975, ch. 95 1/2, par. 6-303(a)).

Defendant testified that he was involved in an accident in 1968 one result of which was that he was required to post an insurance policy as proof of his financial responsibility in order to retain his privilege to drive. Between 1968 and 1972 he cancelled his insurance several times when he wasn't driving or his vehicle was inoperative because his premiums were "pretty high." On these occasions, the insurance carrier notified the Secretary of State of the cancellations and his license would then be suspended until his policy was reinstated. In 1972 he received notice of the revocation of his license. He spoke to an investigator at that time who told him he would have to wait one year to reinstate his driver's license.

The order of revocation states that the action was taken as a result of defendant's having been repeatedly convicted of offenses against laws and ordinances regulating the movement of traffic. An examination of the defendant's driving record by the court, with the assistance of the arresting officer, suggested that the record revealed three moving violations within a year prior to defendant's revocation.

Defendant further testified that in 1972, after his license was revoked, he moved to California and obtained a driver's license there which was renewed in 1975. He informed the California authorities of his 1972 Illinois' revocation at both the times of his original application and renewal application. In 1976 he returned to Illinois, and within a month or two he went to the driver's license examining station in Belleville, Illinois, to turn in his California license and get an Illinois license. He took a written test and informed the examiner that his license had been revoked in 1972, explaining his problems with insurance and suspensions. The examiner did not check the Secretary's records in Springfield at that time, but rather, issued him the temporary driver's license which defendant had on June 16, 1976.

The record reflects that approximately one week after the instant arrest, the Secretary of State notified defendant that this temporary license was cancelled until he provided proof of insurance. On July 19, 1976, before trial, defendant received a new temporary license pending the forwarding of his regular license.

• 3 It is well settled that the only elements necessary to prove the offense of driving a motor vehicle after the revocation of one's driving privileges are: (1) the act of driving a motor vehicle on the highways of this State; and (2) the fact of the revocation of the driver's license or privilege. (People v. Turner (1976), 64 Ill.2d 183, 354 N.E.2d 897; People v. Strode (1973), 13 Ill. App.3d 697, 300 N.E.2d 323.) Defendant's contention, basically, is that element two was not established because he had a temporary license not obtained by fraud at the time in question.

• 4-6 Section 6-208(b) of the Illinois Vehicle Code (Ill. Rev. Stat. 1975, ch. 95 1/2, par. 6-208(b)), which governs application for a license after revocation, makes it clear that if a license or privilege to drive has been revoked there is no automatic restoration of the privilege. (People v. Suddoth (1964), 52 Ill. App.2d 355, 358, 202 N.E.2d 120.) Before the privilege to drive may be restored to one whose license was revoked for repeated moving violations, section 6-208 first requires that he make an application for a license as provided in section 6-106 after the expiration of one year from the date of the revocation. Irrespective of the cause for revocation, ...


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