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06/14/88 the People of the State of v. Michael S. Hubbard

June 14, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT

v.

MICHAEL S. HUBBARD, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

524 N.E.2d 1263, 170 Ill. App. 3d 572, 121 Ill. Dec. 215 1988.IL.933

Appeal from the Circuit Court of Kendall County; the Hon. Wilson D. Burnell, Judge, presiding.

APPELLATE Judges:

JUSTICE INGLIS delivered the opinion of the court. DUNN, J., concurs. JUSTICE WOODWARD, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE INGLIS

Defendant, Michael S. Hubbard, was convicted of driving while under the influence of alcohol (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-501(a)(2)). The trial court granted defendant's post-trial motion, vacated his conviction, and ordered a new trial. Defendant's subsequent motion to suppress evidence was granted, and the State appeals from that order. On appeal, the State contends that defendant's conviction should be reinstated because the trial court lacked jurisdiction to consider his post-trial motion. The State further contends that the trial court's ruling on the motion to suppress was against the manifest weight of the evidence. We reverse.

The parties stipulated to the following facts. On May 18, 1986, at approximately 6:45 p.m., Michael Davis, a deputy with the Kendall County sheriff's department, was on routine patrol along Route 34 in Plano. Davis observed an automobile heading eastbound near the curb at a speed of about five miles per hour. There were two males in the car. The car windows were rolled down, and the passenger was motioning out the window and yelling at two juvenile females who were walking down the street. Davis observed the females wave to the automobile occupants in a manner indicating that they wished to be left alone. Believing the occupants of the car were harassing the two girls, Davis activated his overhead lights and stopped the car after it turned onto Hughes Street. Defendant, who was the driver of the car, had a strong odor of alcohol emanating from his breath. Defendant was placed under arrest after he failed certain field sobriety tests. Davis did not speak to or stop the two girls who were walking along Route 34. Defendant testified that he did not violate any traffic laws or drive in an erratic manner prior to the stop. Defendant further stated that he and his companion were not harassing the girls walking along the street. Rather, his companion was merely trying to get their attention because he thought he knew one of them. The girls were in fact neighbors of defendant's companion.

Prior to the trial, defendant moved to suppress evidence of the investigatory stop which resulted in his arrest. That motion was denied. On September 8, 1986, the trial court found defendant guilty. On October 6, 1986, the court sentenced defendant to a one-year term of probation and imposed a $600 fine. Defendant filed a post-trial motion on October 22, 1986, in which he alleged, inter alia, that his motion to suppress filed prior to trial should have been granted because the investigatory stop made by Davis was improper. The trial court granted defendant's post-trial motion on November 21, 1986. The trial court did not enter a written order disposing of the post-trial motion, and no transcript of proceedings is available for the hearing on that motion. However, the trial court record sheet contains an entry for November 21, 1986, vacating the conviction and granting a new trial. The entry further states that the "[police] acted cautiously, but [the] stop should be quashed." The State's subsequent motion to reconsider the decision on defendant's post-trial motion was denied on January 8, 1987. Thereafter, defendant again moved to suppress evidence of the stop. The court granted defendant's motion on February 19, 1987. The State filed its notice of appeal from that order on March 18, 1987.

Initially, we address defendant's contention that the appeal should be dismissed. We disagree.

Supreme Court Rule 604(a)(1) (107 Ill. 2d R. 604(a)(1)) states as follows:

"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 an arrest or search warrant; or suppressing evidence."

Subject to exceptions not applicable to this case, Supreme Court Rule 606(b) (107 Ill. 2d R. 606(b)) provides that the notice of appeal in a criminal case must be filed within 30 days of the entry of the order or judgment from which the appeal is taken. This 30-day deadline applies to appeals from interlocutory orders. People v. Van Matre (1988), 164 Ill. App. 3d 201, 203; People v. McBride (1983), 114 Ill. App. 3d 75, 79.

It is undisputed that the State filed its notice of appeal within 30 days of the February 19, 1987, order granting defendant's motion to suppress. However, defendant submits that the State should have appealed within 30 days of the November 21, 1986, order vacating his conviction and granting him a new trial since that order also suppressed all evidence obtained as a result of the investigatory stop. We do not interpret the court's decision on that date as an order suppressing evidence. The record sheet entry for November 21, 1986, indicates that the trial court granted defendant a new trial. Although that entry further states that the "[police] acted cautiously, but [the] stop should be quashed," the trial court did not do so at that time. Our Conclusion is supported by the court's use of the phrase "should be quashed" and the subsequent conduct of both defendant and the trial court. Defendant made a separate motion to suppress after November 21, 1986, and prior to the new trial. The trial court entertained that motion to suppress and granted it on February 19, 1987. Thus, the actions of the parties as well as the trial court indicate that the order of November 21, 1986, only granted a new trial and did not actually suppress the evidence. Since the November 21, 1986, order did not have the effect of suppressing the stop, the State could not have appealed from that order. The State's appeal from the February 19, 1987, order suppressing the evidence was timely and is properly before this court.

The first issue raised by the State is whether the trial court lacked jurisdiction to consider defendant's post-trial motion. Section 116-1(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 116-1(b)) requires that post-trial motions be filed within 30 days of entry of a finding or the return of the verdict. Failure to file such motions within that period is a proper ground for denial. (People v. Gray (1981), 96 Ill. App. 3d 757, 762.) Defendant was found guilty by the trial court on September 8, 1986. Defendant was sentenced on that conviction on October 6, 1986. He did not file his ...


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