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09/03/87 the People of the State of v. Paul E. Johnston

September 3, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

PAUL E. JOHNSTON, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

513 N.E.2d 528, 160 Ill. App. 3d 536, 112 Ill. Dec. 114 1987.IL.1286

Appeal from the Circuit Court of Macon County; the Hon. Warren A. Sappington, Judge, presiding.

APPELLATE Judges:

JUSTICE McCULLOUGH delivered the opinion of the court. LUND and KNECHT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH

On August 27, 1986, the defendant, Paul E. Johnston, was arrested for driving while license was suspended. (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 6-303.) The defendant entered a plea of not guilty and was released on a recognizance bond on August 29, 1986. The defendant appeared for pretrial on October 14, 1986, but failed to appear for all subsequent hearings. On November 26, 1986, following a jury trial in absentia, the defendant was convicted. On February 6, 1987, the defendant was sentenced in absentia to 30 days in jail and fined $250.

The defendant appeals his conviction and sentence and in support thereof maintains: (1) the trial court erred by conducting his trial in absentia ; (2) trial in absentia was improper as he did not receive adequate notice of his trial date; (3) the State failed to establish his identity beyond a reasonable doubt; (4) the trial court erred in imposing a $250 fine; and (5) he should be given credit for his pretrial detention. We affirm in part and remand for resentencing.

On August 27, 1986, at approximately 9:40 p.m., police officer Christopher Stenger, of Mt. Zion, Illinois, stopped a car for having a burned-out taillight. Stenger asked the driver for his license. The driver produced a license which identified himself as Paul Johnston.

Stenger then proceeded to contact police headquarters requesting a status check. The radio dispatcher ran the license through the computer. According to the Secretary of State's information, Paul Johnston's license was suspended. Upon receipt of this information, Stenger placed the driver under arrest for driving while license was suspended. On August 28, 1986, the defendant entered a plea of not guilty. A public defender was appointed and the case was set for pretrial on October 14, 1986, with jury trial on October 20, 1986. On August 29, 1986, the defendant was released on a recognizance bond. The recognizance bond, signed by the defendant, contained a certificate acknowledging his understanding of the possibility of waiving his constitutional rights by failing to appear, thereby entitling the court to proceed to trial in his absence. The defendant was additionally informed of his duty to notify the clerk, within 24 hours, of any change of address.

On October 14, 1986, the defendant appeared for pretrial conference and the cause was reallotted for jury trial on November 17, 1986, with pretrial set for November 12, 1986. On November 12, 1986, the defendant failed to appear and bond was ordered forfeited. Notice of forfeiture of bond was sent to the defendant by certified mail, but was returned.

On November 20, 1986, the court, on its own motion, set the cause for jury trial in absentia. On November 26, 1986, the defendant again failed to appear. Over defense objection, the case proceeded to jury trial.

At trial, Stenger testified as to the circumstances preceding the defendant's arrest. Stenger described the driver of the vehicle as a "white male, about 5 foot 10 inches tall, about 150 pounds, blonde hair and glasses." Stenger then identified People's exhibit No. 1 as a photograph of Johnston, the driver of the car he stopped on the night in question. He further stated that the photograph was a fair and accurate depiction of that individual. The photograph was not admitted into evidence.

Additionally, the State introduced records from the office of the Secretary of State indicating defendant's license was revoked at the time of his arrest. The jury found the defendant guilty of driving a motor vehicle while his license was suspended. The court denied defendant's motion for a judgment notwithstanding the verdict and the defendant was subsequently sentenced to 30 days in jail and a $250 fine.

The defendant argues that Illinois law does not provide for trials in absentia when a party is charged with a misdemeanor. The defendant hinges his entire argument on section 115 -- 4.1 of the Code of Criminal ...


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