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06/22/89 the People of the State of v. Benjamin Hanna Et Al.

June 22, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT

v.

BENJAMIN HANNA ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

541 N.E.2d 737, 185 Ill. App. 3d 404, 133 Ill. Dec. 526 1989.IL.964

Appeal from the Circuit Court of Jackson County; the Hon. David W. Watt, Jr., Judge, presiding.

APPELLATE Judges:

JUSTICE GOLDENHERSH delivered the opinion of the court. CHAPMAN and RARICK, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GOLDENHERSH

The people of the State of Illinois appeal from an order of the circuit court of Jackson County dismissing the driving under the influence charges against defendants, Benjamin Hanna and William Lindsey, and rescinding the summary suspension of both defendants' driving privileges. This court reverses and remands with directions.

The record reveals the following facts. On December 16, 1986, defendant Benjamin Hanna (Hanna) was given a ticket for the offense of DUI in violation of section 11-501 of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-501(a)(1)). The ticket stated that defendant was to appear in court on January 7, 1987. Accompanying the ticket was a notice that defendant's license would be suspended because his blood-alcohol level was .18 and he nearly struck three pedestrians.

On December 21, 1986, defendant William Lindsey (Lindsey) was given a ticket for DUI in violation of section 11-501 of the Code (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-501). The ticket stated that his appearance at court was set for January 7, 1987. The accompanying notice stated that defendant's license would be summarily suspended because he refused to submit to a breath test. The notice also contained a statement by the arresting officer that he observed defendant driving the wrong way on a one-way street; defendant smelled of alcohol; and he failed a field sobriety test.

On January 7, 1987, both defendants appeared in court and the State filed a DUI information against each defendant. The court appointed the public defender to represent them and set the cases for trial on January 29, 1987. On January 22, Hanna filed a petition to rescind his summary suspension alleging lack of probable cause and that he was never properly placed under arrest for DUI.

Prior to the time their trial was to start, both defendants filed a motion to dismiss their informations on the ground that the traffic citations were not transmitted to the circuit court within 48 hours of their arrest pursuant to Supreme Court Rule 552 (107 Ill. 2d R. 552). The trial court granted the motions. The court noted that a photocopy of Hanna's citation was filed on January 14, 1987. In the order granting Lindsey's motion, the court noted that a photocopy of his citation was mailed on December 31, 1986.

The record does not reveal whether the trial court acted on Hanna's rescission petition. However, the clerk of the court sent notice to the Secretary of State stating that the trial court found that the summary suspension should be rescinded based on Supreme Court Rule 552. The clerk sent the same notice for Lindsey to the Secretary of State. However, Lindsey did not file a rescission petition and there is no record of the trial court rescinding the order.

The State appealed and filed with it a motion to supplement the record with documents from the Secretary of State's office reflecting the notice of rescission sent by the circuit clerk. This court denied the motion to supplement because the documents were not part of the trial record and a judgment on this issue was not in the record. This court ordered the State to show cause why the appeal from the rescission of the summary suspension should not be dismissed.

The State subsequently filed a response to the order to show cause stating that a proposed nunc pro tunc order was sent to the trial court. The order reflected that the rescission of the suspensions was ordered. However, the trial court returned the proposed order unsigned with a notation stating, "The responsibility of preparing an ...


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