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People v. Mears

OPINION FILED MAY 20, 1980.

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

v.

PAUL MEARS, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Saline County; the Hon. ARLIE O. BOSWELL, JR., Judge, presiding.

MME JUSTICE SPOMER DELIVERED THE OPINION OF THE COURT:

Defendant was charged by Uniform Illinois Traffic Citation and Complaint with driving while under the influence of intoxicating liquor, illegal transportation of alcoholic liquor, and failure to reduce speed to avoid an accident. Prior to trial, the defendant moved to dismiss the charges. The motion was granted, and the State appeals from this dismissal. We affirm.

The record reveals that defendant was charged with the offenses by citations on February 26, 1978. The citations directed defendant to appear in court on March 27, 1978. Defendant appeared pro se on that date and pleaded not guilty. No transcript of the hearings was made, although defendant's subsequent motion to dismiss asserted that he stated to the judge that he was employed in the State of Indiana some 300 miles distant, and would like to be tried then, or as soon as possible. The State's Attorney, in an affidavit, said that no demand for immediate trial was made in his presence, although it appears that he left the courtroom for some period of time while defendant was present. Defendant also asserted that the judge informed him that he could not be tried on that day because of a disagreement between the State's Attorney and the village attorney of Carrier Mills as to who would prosecute the charges. Defendant was then told that he would be notified of the new trial date. The record fails to disclose whether the arresting police officer was present at the initial hearing date.

No further action was taken on the case until September 12, 1978, when notice of a pretrial hearing set for September 29, 1978, was mailed to defendant. On September 29, according to the State's affidavit, a pretrial conference was held. Defendant stated that he was present, but that his case was not called for trial. The State's Attorney alleged plea negotiations took place on that date with no result, and he told defendant to go home and he would be notified of the trial date.

On November 14, 1978, the defendant filed a motion to dismiss the charges and among other grounds, he alleged a violation of Supreme Court Rule 504 (Ill. Rev. Stat. 1977, ch. 110A, par. 504). Following a hearing on November 29, 1978, the motion was denied.

On January 4, 1979, without a dismissal of the charges based on the traffic citations, the State's Attorney filed a criminal complaint against defendant on the same three charges. Pursuant to notice of January 18, defendant appeared in court, pleaded not guilty, and posted bond. Subsequently, on February 6, 1979, defendant filed a motion to dismiss on the grounds that the State failed to set the cause of trial within 49 days of defendant's first appearance, as required by Supreme Court Rules 504 and 505 (Ill. Rev. Stat. 1977, ch. 110A, pars. 504 and 505), and that defendant was not tried within 160 days following his request for a speedy trial on March 27, 1978. After review of affidavits and trial briefs submitted by both parties, the complaints and citations were dismissed on July 9, 1979, on the grounds that the State had failed to prosecute within 49 days, and that the traffic citations should have been dismissed by the State prior to filing a criminal complaint.

• 1 As a preliminary matter, defendant asserts that the State did not have the right to appeal from the order, since the order was not among those specifically enumerated by Supreme Court Rule 604(a) (Ill. Rev. Stat. 1977, ch. 110A, par. 604(a)), and section 114-1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 114-1). However the supreme court has specifically concluded that these provisions were not intended to reduce the range of the State's right to appeal, and the State retains the right to appeal in any other case of a judgment the substantive effect of which resulted in the dismissal of the indictment. (People v. Martin (1977), 67 Ill.2d 462, 367 N.E.2d 1329, 1331; People v. Love (1968), 39 Ill.2d 436, 235 N.E.2d 819, 821.) Therefore, this court has jurisdiction to consider the State's appeal.

The State asserts that the trial court improperly applied the provisions of Supreme Court Rules 504 and 505 to the instant facts. Those rules, as recently amended, provide as follows:

"The date set by the arresting officer for an accused's appearance in court shall be not less than 10 days but within 45 days after the date of the arrest, whenever practicable. It is the policy of this court that an accused who appears and pleads `not guilty' to an alleged traffic or conservation offense should be granted a trial on the merits on the appearance date set by the arresting officer. Except as provided in Rule 505, an arresting officer's failure to appear on that date, in and of itself, shall not normally be considered good cause for a continuance." Ill. Rev. Stat. 1977, ch. 110A, par. 504.

When issuing a Uniform Citation and Complaint, a conservation ticket or a Notice to Appear in lieu of either, in counties other than Cook, the officer shall also issue a written notice to the accused in substantially the following form:

AVOID MULTIPLE COURT APPEARANCES

If you intend to plead `not guilty' to this charge, or if, in addition, you intend to demand a trial by jury, so notify the clerk of court at least 5 days (excluding Saturdays, Sundays or holidays) before the day set for your appearance. A new appearance date will be set, and arrangements will be made to have the arresting officer present on that new date. Failure to notify the clerk of either your intention to plead `not guilty' or your intention to demand a jury trial may result in your having to return to court, if you plead `not guilty' on the date originally set for your court appearance.

Upon timely receipt of notice that the accused intends to plead `not guilty,' the clerk shall set a new appearance date not less than 7 days nor more than 49 days after the original appearance date set by the arresting officer, and notify all parties of the new date and the time for appearance. If the accused demands a trial by jury, the trial shall be scheduled within the time prescribed by section 103-5 of the Code of Criminal Procedure of 1963, as amended (Ill. Rev. Stat. 1977, ch. 38, par. 103-5). If the accused fails to notify the clerk as provided above, the arresting officer's failure to appear on the date originally set for appearance may, in counties other than Cook, be considered good cause for a continuance. Any State agency or any unit of local government desiring to be exempt from the requirements of this Rule 505 may apply to the Conference of Chief Circuit Judges for an exemption." Ill. Rev. Stat. 1977, ch. 110A, par. 505.

The State contends that there was no error in failing to set a new appearance date within 49 days of the first appearance, since the defendant failed to notify the clerk at least five days before the first appearance of his intention to plead not guilty. Timely notification, the State asserts, is a condition precedent to the application of Rules 504 and 505. The defendant disagrees. He does not deny that he waived any right to a hearing on the merits of the case at his first appearance, but asserts that the other aspects of Rules 504 and 505, including a hearing within 7-49 ...


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