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08/04/88 the People of the State of v. Albert Schultz

August 4, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

ALBERT SCHULTZ, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

527 N.E.2d 984, 173 Ill. App. 3d 738, 123 Ill. Dec. 346 1988.IL.1211

Appeal from the Circuit Court of Cook County; the Hon. Arthur H. Gross, Judge, presiding.

APPELLATE Judges:

JUSTICE McMORROW delivered the opinion of the court. JIGANTI, P.J., and JOHNSON, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCMORROW

Following a bench trial, defendant Albert Schultz was convicted of leaving the scene of a motor vehicle accident involving personal injury without identifying himself to the other driver. (Ill. Rev. Stat. 1987, ch. 95 1/2, pars. 11-401, 11-403.) He was fined $180 and his driver's license was revoked. On appeal, defendant presents two questions: (1) whether a challenge to the sufficiency of a charging instrument based upon its failure to allege the element of knowledge must be sustained when the challenge is raised for the first time in a timely motion in arrest of judgment; and (2) whether the proof supports his conviction. We affirm.

Background

At trial, the evidence established the following. On May 18, 1986, the pickup truck driven by defendant collided with a car driven by Susan Koenig at the intersection of Lowell Street and Irving Park Road in Chicago. Koenig got out of her car. Initially both defendant and his wife got out of their truck. Koenig asked defendant to stay at the scene, but almost immediately he got back into the truck and left the scene without identifying himself.

Defendant's wife testified that she advised Koenig of her name and address, and a waitress at a nearby bar testified that she overheard this identification. Koenig, however, denied that either defendant or his wife gave "any indication whatsoever to identify themselves." The trial court found defendant guilty, entered a conviction on the verdict, and imposed a penalty upon defendant as stated above. Defendant filed a timely motion for a new trial. One month later, and outside of the time limitation set forth in section 116-2 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 116-2), defendant filed a supplemental motion for a new trial "AND/OR" in arrest of judgment. The trial court denied defendant's motion and this appeal followed.

Opinion I

Defendant argues his conviction must be reversed because the trial court erred in denying his motion in arrest of judgment. Defendant's motion in arrest of judgment alleged that the charging instrument, a verified uniform traffic ticket, omitted an allegation of the requisite mental state.

Initially the State contends that defendant waived the complaint's insufficiency by failing to file his motion in arrest of judgment in a timely fashion. (See Ill. Rev. Stat. 1987, ch. 38, par. 116-2.) A timely motion for a new trial serves the important function of preserving the trial court's jurisdiction over the allegations of error. (See People v. Crete (1985), 133 Ill. App. 3d 24, 32, 478 N.E.2d 846.) The time limitation imposed on motions in arrest of judgment under section 116-2 is mandatory rather than directory. (See People v. Talach (1983), 114 Ill. App. 3d 813, 818, 448 N.E.2d 638.) Failure to comply with mandatory prescriptions regarding the filing of post-trial motions has not resulted in waiver, however, where the State has failed to object or demand compliance. For example, the Illinois Supreme Court has consistently held that absent a State objection, an oral motion for a new trial will suffice despite a mandatory statutory provision requiring that the motion be in writing. (E.g., People v. Yates (1983), 98 Ill. 2d 502, 512, 456 N.E.2d 1369, cert. denied (1984), 466 U.S. 981, 80 L. Ed. 2d 836, 104 S. Ct. 2364; People v. Pearson (1981), 88 Ill. 2d 210, 217, 430 N.E.2d 990.) This court, in People v. Ellison (1984), 123 Ill. App. 3d 615, 463 N.E.2d 175, held that a defendant's challenge to the complaint's sufficiency, although more properly made in a motion in arrest of judgment, was preserved by an amendment to a motion for a new trial where the State failed to object. Ellison noted that the appellate court has treated these motions interchangeably, construing a challenge to a complaint contained in a motion for a new trial as a motion in arrest of judgment. 123 Ill. App. 3d at 622, citing People v. Pettus (1980), 84 Ill. App. 3d 390, 392, 405 N.E.2d 489.

Here, defendant filed a timely motion for a new trial. The motion for new trial declares that it "is a pro forma motion brought pending [his newly hired appellate counsel's] review of the transcript and proceedings in this cause." The motion for new trial, filed near the end of the limitation period, explicitly stated defendant's intent to later supplement this motion. The State voiced no objection. Subsequently, after the expiration of the limitation period, defendant filed a motion denominated "SUPPLEMENTAL MOTION FOR A NEW TRIAL AND/OR IN ARREST OF JUDGMENT." The motion asserted, inter alia, that the "complaint fails to charge an offense in that it fails to allege the requisite state of mind, to wit, knowledge." Again, the State did not object or move to strike the pleading. The trial court considered and ruled on the motion without any response being filed on behalf of the State.

We disagree with the State's contention that defendant waived his objection to the complaint's sufficiency because his motion in arrest of judgment was not filed timely. Defendant's initial timely filed motion for a new trial preserved the trial court's jurisdiction over any allegations of error. Defendant's timely filed motion for a new trial also made clear his intent to supplement that motion. At the time of the filing of defendant's motion for a new trial, the State could have objected to the filing of any supplemental post-trial motion, whereupon defendant might have filed a motion in arrest of judgment before the expiration of the time limitation. Even if we assume that the supplemental motion was an untimely motion in arrest of judgment, in light of the circumstances of this case, and consistent with the holding of the supreme court in People v. Yates (1983), 98 Ill. 2d 502, 456 N.E.2d 1369, we conclude that defendant did not waive his objection to the sufficiency of the complaint. We also note that in a similar situation, the court treated the motion for a new trial as interchangeable with a motion in arrest of judgment. (See People v. Ellison (1984), 123 Ill. App. 3d 615, 463 N.E.2d 175.) If we regard the motion for new trial and the motion in arrest of judgment as interchangeable, it is ...


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