Appeal from the Circuit Court of Kankakee County; the Hon.
Wayne P. Dyer, Judge, presiding.
JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:
Rehearing denied July 11, 1986.
The defendant, Albert L. Jackson, was charged with two counts of reckless homicide. Pursuant to the defendant's motion based on double jeopardy, the court struck one count and precluded the State from introducing evidence of the defendant's intoxication in its prosecution of the remaining count. The State brought the instant appeal.
On November 12, 1982, the defendant was involved in an automobile accident which caused the death of the defendant's passenger. On that same day, the defendant was issued uniform traffic citations for "driving under the influence" (DUI) and illegal transportation of alcohol. (Ill. Rev. Stat. 1983, ch. 95 1/2, pars. 11-501, 11-502.) The following Monday, November 15, at a bond call for which the defendant was not represented by counsel and for which there may have been no prosecutor present, the defendant pleaded guilty to both charges. The court accepted the defendant's knowing and voluntary pleas and continued the case for sentencing.
On December 8, 1982, the case was called. In the defendant's absence, the court granted the State's motion to nol-pros both charges.
On December 20, 1982, the State filed the instant indictment, alleging two counts of reckless homicide. (Ill. Rev. Stat. 1983, ch. 38, par. 9-3(a).) Count I alleged that by recklessly swerving, the defendant caused the automobile he was driving to strike a tree and thereby cause the death of his passenger. Count II was essentially identical to count I with the additional allegation that the defendant was driving under the influence of alcohol.
In September and November of 1984, respectively, the defendant filed his motion and amended motion to dismiss the bill of indictment. In his filings and at the hearing on the amended motion, the defendant argued that reliance on the factual basis for the DUI and illegal-transportation proceedings in prosecution of the reckless homicide charges constituted double jeopardy. According to the defendant, jeopardy attached when he was prosecuted for, and pleaded guilty to, the prior charges.
The court found that the defendant had been placed in jeopardy as to the crime of DUI. Finding that count II could not be sustained without proof that the defendant drove under the influence of alcohol, the court dismissed count II. The court did not dismiss count I, but ordered that to prove it, the State would not be allowed to introduce any evidence of drinking, intoxication, or illegal transportation of alcohol.
• 1 The State's first argument on appeal is that the court improperly allowed in part the defendant's motion to dismiss, as no jeopardy related to the DUI offense had attached. The State bases its arguments on its assertions that the charging instrument was fatally defective and that the State was not afforded an opportunity to be present at the defendant's first court appearance so that it could nol-pros the charge before the court accepted the defendant's guilty pleas.
We will first address the former basis and will address the latter basis in connection with the defendant's second argument. Initially, we find that the DUI citation to which the defendant pleaded guilty was flawed as it charged the defendant with "driving under the influence" without specifying the influence of any substance. (People v. Utt (1983), 122 Ill. App.3d 272, 461 N.E.2d 463.) Nevertheless, that defect did not deprive either the court of subject matter jurisdiction (People v. Gilmore (1976), 63 Ill.2d 23, 344 N.E.2d 456), or the defendant of the capacity to plead guilty to the charge (see Ill. Rev. Stat. 1983, ch. 38, pars. 111-3(b), 111-2(b); People v. Pujoue (1975), 61 Ill.2d 335, 335 N.E.2d 437). Furthermore, because the defect was not jurisdictional it was waived by the defendant's voluntary guilty plea. (People v. Dunn (1972), 52 Ill.2d 400, 288 N.E.2d 463.) The flaw in the DUI charge against the defendant did not prevent the attachment of jeopardy.
• 2 The State's second argument, also closely connected with its first argument, is that the defendant's guilty plea was void as the court improperly allowed its entry without affording the State the opportunity to be present at the proceedings. According to the State, no jeopardy attached as to the offense of DUI as the State was not notified of, or present at, the plea proceedings, no conviction was ever entered, and the charge was quickly nol-prossed once the proper prosecutorial authorities were notified.
The State relies largely on People v. Bressette (1970), 124 Ill. App.2d 469, 259 N.E.2d 592. In Bressette, the court found that the State was not precluded from proceeding on a reckless homicide indictment by the defendant's guilty plea to wrong-lane usage, the latter charge arising out of the same events as the former. We find that the State misplaces reliance on Bressette.
In the instant case, unlike in Bressette, whether the State was afforded an opportunity to be present at the defendant's first court appearance is a matter of substantial dispute. In that regard, we have taken with the case a motion by which the defendant requests that we strike an appendix to the State's reply brief offering a certified copy of the request made by the State's Attorney's office for the defendant's driving record. The State offers the appendix to support its claim that it was absent from the plea offering. We deny the defendant's motion to strike the appendix, but grant his request to respond to the public document.
• 3 In considering the State's second argument, we again note that here, unlike in Bressette, the defendant does not concede the State's absence from the hearing where the pleas were offered and accepted (the hearing). Consequently, we must first presume that the State's Attorney performed his duty of prosecuting felony and misdemeanor charges, unless he rebuts the presumption by denying he was present to so perform. (Ill. Rev. Stat. 1983, ch. 14, par. 5; In re Vitale (1976), 44 Ill. App.3d 1030, 358 N.E.2d 1288, vacated on other grounds (1980), 447 U.S. 410, 65 L.Ed.2d 228, 100 S.Ct. 2260.) Regarding the State's rebuttal, we note that despite the State's vigorous argument on appeal that it was not notified of, and did not participate in, the plea proceedings, in the trial ...