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09/27/89 the People of the State of v. Robert P. Peruscini

September 27, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT

v.

ROBERT P. PERUSCINI, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

544 N.E.2d 1133, 188 Ill. App. 3d 803, 136 Ill. Dec. 358 1989.IL.1525

Appeal from the Circuit Court of Du Page County; the Hon. Donald J. Hennessy, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE NASH

The State appeals from an order entered by the circuit court of Du Page County dismissing traffic violation charges against defendant, Robert P. Peruscini, on due process grounds. The State contends that the trial court was without authority to do so and that defendant's due process rights were not violated. We reverse and remand.

Defendant was charged by complaint with driving under the influence of alcohol (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11-501(a)(2)), as well as improper lane usage and failure to wear a seatbelt. Defendant was arraigned, and his case was set for trial on June 16, 1988. Prior to the trial date, however, both the State and the defendant requested a continuance. The State asserted that a material witness, Officer Cortese, was unavailable; defendant asserted that his attorney had suffered a back injury which required prolonged medical care. Defendant suggested several dates in August 1988 for trial, and the case apparently was reset for August 9. On the trial court's docketing sheet, however, the "8/9" date has been scratched out and the following appears: "(Tel Df Atty Lf Msg) (Date change from 8/9 to 8/16)."

On August 16, 1988, both the State and defendant appeared at the 10:30 court call and answered ready, and the court placed the matter on the 1:30 call for trial. At 1:30, the State requested a continuance because Officer Cortese was unavailable. The assistant State's Attorney explained to the court that on August 9 he and the officer had appeared ready for trial, but were then informed that the case had been continued. When the assistant State's Attorney verified the new trial date, he sent notice to Officer Cortese, but he could not be sure that the officer had received notice, and he had been unable to contact him yet that day. The trial Judge could not recall who had made the request for the August 16 date, but he did remember calling defense counsel's office to advise him of the new date.

In responding to the State's motion, the trial Judge stated that he did not think it was "fair" that the State had answered ready in the morning, requiring the defense attorney to "stay all morning here through a court call," and that it was not fair "that the defendant should not be allowed to proceed under these circumstances." The court denied the State's motion for a continuance. The assistant State's Attorney then advised the court that the State was not prepared for trial and would not proceed. The defendant then made a motion to dismiss the charges, and the trial court stated:

"THE COURT: Alright. Defense motion to dismiss by answering ready for trial at 10:30 and holding the defense and his witness here until 1:30 in the afternoon, having no affidavit to present to the Court at this time; the defendant's motion to dismiss under due process grounds is granted."

The assistant State's Attorney advised the court that, if the court was dismissing the cause because the State had failed to provide an affidavit or a written motion, those documents could be provided "within five minutes." In response, the trial court stated:

"THE COURT: Alright. Well, I will go on the record and say that is one of my grounds, but I think there is another ground that there is something inherently unfair about having people here for a trial at 10:30 in the morning, answering ready for trial, the State answering ready for trial, I hold people here all morning with their witnesses and I bring them back here at 1:30 for trial and then we get this situation."

The assistant State's Attorney told the court that he believed it was also inherently unfair that the court date had previously been changed by the Judge, apparently by telephone, without notice to the State or the officer. The trial court responded:

"THE COURT: I am sure I didn't just notify the defense attorney on my own behalf or the Court's -- I would not have given this matter an August ...


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