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08/31/89 the People of the State of v. Bobby B. Odumuyiwa

August 31, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

BOBBY B. ODUMUYIWA, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

544 N.E.2d 405, 188 Ill. App. 3d 40, 135 Ill. Dec. 909 1989.IL.1348

Appeal from the Circuit Court of Du Page County; the Hon. Roy F. Lawrence and the Hon. Donald J. Hennessy, Judges, presiding.

APPELLATE Judges:

JUSTICE LINDBERG delivered the opinion of the court. McLAREN and REINHARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINDBERG

Following a bench trial, defendant, Bobby B. Odumuyiwa, was convicted of unlawful use of a driver's license (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 6-301) and driving while his driver's license was suspended (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 6-303). On April 16, 1987, the trial court sentenced defendant to two concurrent terms of 28 days in the county jail. Defendant raises three questions for appellate review: (1) whether the prosecution failed to prove the defendant guilty beyond a reasonable doubt of the offense of driving while his driver's license was suspended where the stipulated, uncontested evidence adduced below was that defendant's driver's license had been cancelled prior to being suspended by the Secretary of State; (2) whether the trial court erred in finding defendant guilty of two offenses (unlawful use of license and driving while driver's license was suspended) where both offenses were carved from the same physical act; and (3) whether the mittimus for the unlawful use of license conviction should be corrected to reflect that the offense is a Class C misdemeanor.

We affirm both convictions and sentences; however, we remand the cause with instructions that the sentencing order and mittimus in case No. 86--TR--121929 be corrected to reflect that the unlawful use of a driver's license is a Class C misdemeanor.

The facts of this case must be gleaned principally from the bystander's report certified by the trial court. The report states the following:

"On March 12, 1987, a hearing was held on Defendant-Appellant's Motion to Dismiss the instant charges of Driving While License Suspended and Unlawful Use of License on October 16, 1986. Defendant was represented by counsel. The Motion to Dismiss was predicated on the uncontested fact that the certified record of the Secretary of State showed: (1) that in early April, 1986, that office had cancelled Defendant's driving license; and (2) that approximately two weeks later Defendant's driving license was suspended. In light of that fact, counsel maintained: (a) that the purported suspension must be regarded as a null act, the license having already been cancelled; and (b) that, accordingly, the report of the Secretary of State that Defendant's driving license remained suspended as of the subsequent arrest date must, as a matter of law, be held to be erroneous. There being no evidence of a change in status between April and October (e.g., a reinstatement and a resuspension), counsel asked that the charges be dismissed. Neither counsel for Defendant nor the Assistant State's Attorney cited authority in case law in support or in opposition.

The court denied the motion to dismiss and entered a finding of guilty on each charge. It is to be noted that it is uncertain whether the findings of guilty were entered on pleas of guilty or rather pursuant to stipulated evidence and the contested motion. The relevant notations on the reverse of both court files and on both sentencing orders show, inter alia, pleas of guilty. Yet it may be that the pleas of guilty were treated as if withdrawn. In either event, the findings of guilty were entered only subsequent to the agreed admission into evidence, at hearing, of the Secretary of State's abstract of record concerning Defendant. Nothing was contested other than the legal effect of a cancellation effective prior to a purported suspension."

Defendant first argues that he could not be found guilty beyond a reasonable doubt of driving while his license was suspended because the Secretary of State (Secretary) cannot suspend a previously cancelled driver's license. Defendant reasons that suspending a previously cancelled license is a nullity, since the prior license is no longer in force. Defendant also points out that a suspension is qualitatively different from a cancellation. Based on particular facts of this case, defendant raises an issue which appears to be a matter of first impression in this court.

The State responds that the Secretary may suspend a driver's current driving privilege even after a driver's license has been previously cancelled, noting that there is no case law or statutory authority preventing him from doing so. We agree with defendant that a suspension is qualitatively different from a cancellation; however, we see no reason why the Secretary, in addition to canceling a license, may not also suspend a person's driving privilege thereby preventing a driver from applying for or reinstating a license during a specific period of time. An examination of the two distinct courses of action available to the Secretary reveals that each has its own purpose and effect.

Pursuant to section 6-201 et seq. of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 6-201 et seq.), the Secretary is authorized to cancel or suspend a person's driving privilege or driver's license. The cancellation of a driver's license is defined as:

"The annulment or termination by formal action of the Secretary of a person's driver's license because of some error or defect in the license or because the licensee is no longer entitled to such license, but the cancellation of a license is without prejudice and application for a new license may be made at ...


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