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06/30/88 the Village of Cary, v. Leroy K. Pavis

June 30, 1988

THE VILLAGE OF CARY, PLAINTIFF-APPELLANT

v.

LEROY K. PAVIS, DEFENDANT-APPELLEE



Before considering the merits of the issue raised, we have a duty to consider our jurisdiction to hear this interlocutory appeal and, if jurisdiction is wanting, to dismiss the appeal. (Ferguson v. Riverside Medical Center (1986), 111 Ill. 2d 436, 440, 490 N.E.2d 1252; Archer Daniels Midland Co. v. Barth (1984), 103 Ill. 2d 536, 539, 470 N.E.2d 290.) It is well established that an appellate court, subject to certain exceptions for appeals from interlocutory orders specified in Illinois Supreme Court Rules 306, 307, and 308 (107 Ill. 2d Rules 306, 307, 308), is without jurisdiction to review judgments or orders which are not final. (Flores v. Dugan (1982), 91 Ill. 2d 108, 112, 435 N.E.2d 480; In re J.N. (1982), 91 Ill. 2d 122, 126-27, 435 N.E.2d 473.) This interlocutory appeal is clearly not sought pursuant to any of the aforementioned rules. Nevertheless, we must consider whether this interlocutory appeal by the Village is allowed by Supreme Court Rule 604(a), which is applicable to appeals in criminal cases by the State from certain types of orders, including the suppression of evidence.

APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

526 N.E.2d 523, 171 Ill. App. 3d 1072, 122 Ill. Dec. 264 1988.IL.1047

Appeal from the Circuit Court of McHenry County; the Hon. James C. Franz, Judge, presiding.

APPELLATE Judges:

JUSTICE REINHARD delivered the opinion of the court: DUNN and INGLIS, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE REINHARD

Defendant, LeRoy K. Pavis, was charged in traffic citations in the circuit court of McHenry County with violating Village of Cary (Village) ordinances of improper lane usage and driving while under the influence of alcohol . Further, the Village ordinances provide that a person convicted of DUI shall be punished either by a fine not to exceed $1,000 or by imprisonment not to exceed one year, or both. Prior to trial, the Village attorney filed a motion in limine requesting a ruling as to whether the trial court would suppress evidence, which the Village would seek to introduce at trial, that a "warning to motorist" was read to defendant pursuant to section 11-501.1(c) of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11-501.1(c)). In its motion, the Village represented that because of the court's prior ruling in a different case, the Village believed that the court would suppress evidence of the warning and the Village would appeal the anticipated suppression.

Following arguments on the motion in limine, the trial court suppressed evidence of the warning and granted "leave" to the Village to file an interlocutory appeal. The Village attorney filed a certificate of substantial impairment stating that the suppression "substantially impairs my ability to prosecute." Notice of appeal was thereafter filed.

The sole issue raised in the Village's brief is whether the trial court erred in suppressing evidence of the "warning to motorist" given to defendant prior to his refusal to take a breathalyzer test. No appellee's brief has been filed.

Rule 604(a) provides:

"(a) Appeals by the State.

(1) When State May Appeal. 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.

(2) Leave to Appeal by State. The State may petition for leave to appeal under Rule 315(a).

(3) Release of Defendant Pending Appeal. A defendant shall not be held in jail or to bail during the pendency of an appeal by the State, or of a petition or appeal by the State under Rule 315(a), unless there are compelling ...


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