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01/14/87 the People of the State of v. Willie Smith

January 14, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT

v.

WILLIE SMITH, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

503 N.E.2d 584, 151 Ill. App. 3d 922, 104 Ill. Dec. 869 1987.IL.27

Appeal from the Circuit Court of Kane County; the Hon. Gene L. Nottolini, Judge, presiding.

APPELLATE Judges:

JUSTICE WOODWARD delivered the opinion of the court. LINDBERG, P.J., and INGLIS, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOODWARD

The State appeals from the trial court's order suppressing testimony and dismissing the case against defendant, Willie Smith. Smith was charged with driving an overweight vehicle. (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 15-111.) The State contends on appeal that the trial court improperly suppressed certain testimony and erred in dismissing the charge against the defendant.

The relevant facts are as follows. On June 17, 1985, Trooper David C. Bird of the Illinois State Police observed the defendant driving a five-axle dump truck eastbound on Illinois 5, a public highway. Bird noticed that the truck's tires appeared squashed, the springs were overloaded, and the weight shifted to the rear of the truck. Bird stopped the truck and requested the defendant's weight ticket, which indicated that there was 19,000 pounds on the drive axle. Bird then ordered the defendant to drive to the nearest weighing station. After weighing the vehicle, Bird ordered defendant to assist him with measuring the truck's axle length by holding a tape measure. After the defendant complied, Bird issued defendant a traffic citation for the aforementioned violation.

Defendant entered a plea of not guilty. The trial began on August 12, 1985, but the proceedings were not transcribed. A bystander's report has been provided. Testifying for the State at defendant's trial, Bird explained that defendant had assisted him with measuring the axle length. At that point, defense counsel moved to suppress further testimony. Defense counsel argued, and the trial court agreed, that Bird had not informed defendant of his constitutional rights prior to ordering him to hold the tape measure, and the act of measuring itself violated defendant's right not to be forced to participate in the gathering of physical evidence against him. The trial court suppressed further testimony from Bird and dismissed the charge against the defendant.

The State filed a motion to reconsider the trial court's ruling. After a hearing on the motion, the trial court reaffirmed its ruling, stating as follows:

"I feel that the way that this was presented, it didn't follow the statute. It just struck me as being an improper gathering of evidence and that's why I granted the motion to quash and maybe we didn't use the proper terminology and when I put the order in maybe I left some ambiguity in the order when I dismissed the case, but that was my -- my feeling was that the case was improperly -- the evidence was improperly gathered and that's why I thought that the motion would lie and the case would be dismissed."

From this ruling, the State appeals.

We first must determine if the State may appeal from the trial court's ruling. The defendant argues that the State cannot appeal because the trial court's order dismissing the charge was, in effect, an acquittal. After a trial on the merits in a criminal case, the State may not appeal from a judgment of acquittal. (People v. Verstat (1983), 112 Ill. App. 3d 90, 96.) Although the trial court designated the judgment a "dismissal," this designation is not determinative of the judgment's nature or appealability. (People v. Deems (1980), 81 Ill. 2d 384, 388-89, cert. denied (1981), 450 U.S. 925, 67 L. Ed. 2d 355, 101 S. Ct. 1378.) An acquittal occurs when the trier of fact renders a finding of not guilty based upon the evidence before it. (People v. King (1974), 17 Ill. App. 3d 1064, 1066-67.) Defendant was discharged on grounds unrelated to his guilt. Such a dismissal of the charge is not a judgment of acquittal. (People v. Oswald (1982), 106 Ill. App. 3d 645, 647.)

Defendant also argues that the State may not appeal from a ruling entered during trial. In a criminal case, the State may appeal only as permitted by Supreme Court Rule 604(a) (103 Ill. 2d. R. 604(a)). Supreme Court Rule 604 (a)(1) provides:

"In criminal cases the State may appeal only from an order or judgment the substantive effect of which results in dismissing a charge for any of the grounds enumerated in section 114 -- 1 of the Code of Criminal Procedure of 1963; arresting judgment because of a defective indictment, information or complaint; quashing ...


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