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People v. Hahn

OPINION FILED MARCH 26, 1980.

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

v.

JAMES M. HAHN, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Will County; the Hon. JOHN VERKLAN, Judge, presiding.

MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

On June 29, 1978, the defendant was arrested and issued a uniform traffic citation charging him with driving while his license was suspended and revoked. On July 26, 1978, he appeared in court and was advised of the charge, the maximum penalty provided by law, his right to counsel, and his right to trial by jury. The cause was continued. On August 23, 1978, defendant appeared in court without an attorney, pleaded not guilty, and signed a waiver of his right to trial by jury. The cause was continued for bench trial.

On November 8, 1978, defendant appeared without an attorney and requested a further continuance to obtain counsel. The People were ready for trial and objected to a continuance. The trial court continued the matter until February 1, 1979, because no attorney had appeared of record and no attorney was present in court.

On February 1, 1979, defendant appeared for trial. The People orally moved to amend the Illinois uniform citation and complaint on its face by striking the words "suspended and." The motion was allowed. The trial court explained to the defendant that the words stricken were surplusage and that the trial would proceed on the charge of driving while license was revoked. Defendant was not arraigned on the amended charge.

Defendant orally moved for a continuance because his attorney was not present in court. The People objected to a further continuance. After examining the record and finding continuances for the purpose of obtaining counsel, the court asked defendant the name of his counsel and the reason he wasn't in court. Defendant did not know his counsel's name, his address, or why he was not present. The court found that defendant had failed to show that he had hired an attorney and that the trial had already been inordinately delayed. Defendant's motion was denied.

Trial was held and the defendant was found guilty. Sentencing was set for February 15, 1979, and then continued to March 1, 1979, and then to March 15, 1979.

On February 15, 1979, defendant's privately retained counsel filed his appearance in the case and on February 20, 1979, filed a motion to vacate and set aside the bench finding of guilty, to reinstate the plea of not guilty, and to set the cause on the jury calendar.

On March 15, 1979, the sentencing hearing was held and the same attorney represented defendant at that time. At the hearing the State presented an abstract of defendant's driving record which showed that on April 26, 1973, his license was suspended for 90 days for convictions for three moving violations during one year; on August 10, 1974, his license was suspended for three moving violations during one year; on November 12, 1974, his license was revoked for a conviction of driving under the influence of intoxicating liquor; on May 11, 1975, he was convicted for driving while his license was revoked; on December 2, 1977, he was convicted for driving while his license was revoked; on February 1, 1978, his drivers license revocation was extended for one year; and on June 1, 1978, he was convicted for violation of restricted driving privileges. The trial court sentenced defendant to 30 days incarceration in the Will County Jail.

On March 16, 1979, defendant filed a supplemental motion to vacate and set aside bench finding of guilty, to reinstate pleas of not guilty, and to set cause on the jury calendar. He also filed a motion to modify sentence. These motions were denied on March 20, 1979.

On appeal defendant raises the following issues: (1) the trial court erred by not arraigning defendant after amendment of the charge and not informing him of his right to jury trial and right to counsel, and by not granting his motion for continuance; (2) upon learning that defendant was not represented by private counsel on the day of trial, the trial court erred by not conducting an examination of defendant to determine his indigency and eligibility for a public defender or other court-appointed counsel; (3) the trial court abused its discretion in sentencing defendant to 30 days in jail.

Defendant first argues that the citation written by the police officer did not state an offense. As a result, defendant was not properly arraigned prior to the amendment of the citation. After the amendment the trial court failed to arraign defendant on the amended charge, therefore, defendant was never arraigned. If he were not charged with an offense, any plea was a nullity.

Defendant also argues that since he was not charged with an offense until after the amendment, the trial court had a duty to grant him a continuance so that he could obtain counsel. Ill. Rev. Stat. 1977, ch. 38, par. 113-3(a).

• 1, 2 In support of his theory the defendant argues that the traffic citation issued by the police officer was so duplicitous, improperly worded and vague that defendant was not afforded an opportunity to prepare his defense. Defendant admits that when a complaint is attacked for the first time on appeal the charge must merely "[apprise] the accused of the precise offense charged with sufficient specificity to prepare his defense and allow pleading a resulting conviction as a bar to future prosecution arising out of the same conduct." (People v. Pujoue (1975), 61 Ill.2d 335, 339, 335 N.E.2d 437; People v. Wareberg (1976), 44 Ill. App.3d 78, 358 N.E.2d 54.) However, if the pleading is attacked at the trial level in a motion to dismiss or a motion in arrest of judgment, the charge must strictly comply with the statutory requirements of section 111-3 of the Code of Criminal Procedure of 1963. (Ill. Rev. Stat. 1977, ch. 38, par. 111-3; People v. Deal (1979), 69 Ill. App.3d 74, 387 N.E.2d 21.) Since a motion in arrest of judgment is inappropriate when the charge is amended before trial, defendant raised the issue in his amended motion to vacate and set aside the bench finding of guilty.

Defendant complains that the citation states two separate offenses in one complaint. The word "suspended" and the word "revoked" are not so intimately associated in their meaning that they allege the same act, therefore, the complaint violates section 111-3 of the Code of ...


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