APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT
546 N.E.2d 1087, 190 Ill. App. 3d 678, 138 Ill. Dec. 32 1989.IL.1715
Appeal from the Circuit Court of Fayette County; the Hon. William L. Kelly, Judge, presiding.
JUSTICE RARICK delivered the opinion of the court. HARRISON and GOLDENHERSH, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RARICK
Defendant, John R. Thompson, appeals pursuant to Supreme Court Rule 604(f) (107 Ill. 2d R. 604(f)) from the denial by the circuit court of Fayette County of his motion to dismiss his case on grounds of former jeopardy.
On October 24, 1987, defendant received a uniform Illinois traffic citation and complaint charging him with driving while intoxicated. The citation scheduled defendant's initial appearance at 9 a.m. on November 23, 1987. On November 3, 10 days after his arrest, the State filed a two-count information charging defendant with driving while intoxicated and driving while his breath-alcohol content was in excess of .10 (Ill. Rev. Stat. 1987, ch. 95 1/2, pars. 11-501(a)(1), (a)(2)). On November 23, defendant filed a plea of not guilty, a demand for trial by jury, a demand for speedy trial pursuant to section 103-5(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 103-5(b)), and a demand for trial on the appearance date pursuant to Supreme Court Rule 505 (107 Ill. 2d R. 505). The minute record of the court further noted the case was "Continued to 12/7/87 at 9:00 A.M. Notice to issue." The notice issued, also dated November 23, 1987, advised both defendant and the State the case was set for first appearance on December 7, 1987.
On December 7, 1987, defendant appeared with counsel ready for a jury trial. The State, however, announced it was not ready because the arresting officer was absent. The State then served upon defendant the previously filed two-count information. Defendant orally moved the court to dismiss the case pursuant to Supreme Court Rules 504 and 505 (107 Ill. 2d Rules 504, 505). The court took defendant's motion under advisement, and on the following day, dismissed the case, finding that defendant had complied with the requirements of Rules 504 and 505 by entering a written plea of not guilty and demand for jury trial within the time prescribed, had served the State's Attorney with a separate demand for speedy trial and had appeared ready for trial on December 7, while the State was not ready and the arresting officer failed to appear in person in court. The State filed a motion to reconsider on December 22 which the trial court subsequently granted on January 28, 1988. The court reinstated defendant's charges on the grounds that defendant's demand for a jury trial constituted a waiver of the right under Rule 505 to trial on the appearance date. Defendant then filed a motion to dismiss the charges, arguing that further prosecution was barred by considerations of double jeopardy because of the December 8 dismissal. The trial court denied defendant's motion, resulting in this interlocutory appeal. The issue before us then is whether prosecution of this case is barred by considerations of former jeopardy. We believe the trial court erred in reinstating prosecution of the case, and accordingly, reverse the court's decision. The charges against defendant therefore are to be dismissed with prejudice.
Supreme Court Rules 504 and 505 delineate a framework of times and limits governing appearances and trials for traffic and conservation offenses. (See People v. Herbert (1984), 122 Ill. App. 3d 43, 44, 460 N.E.2d 86, 87.) While both rules have been amended since the pending of this appeal (see 128 Ill. 2d Rules 504, 505), at the time of defendant's alleged offense, Rule 504 provided:
"The date set by the arresting officer for an accused's appearance in court shall be not less than 14 days but within 49 days after the date of the arrest, whenever practicable. It is the policy of this court that an accused who appears and pleads 'not guilty' to an alleged traffic or conservation offense should be granted a trial on the merits on the appearance date set by the arresting officer. Except as provided in Rule 505, an arresting officer's failure to appear on that date, in and of itself, shall not normally be considered good cause for a continuance." (107 Ill. 2d R. 504.)
Rule 505 provided in part:
"When issuing a Uniform Citation and Complaint, a conservation ticket or a Notice to Appear in lieu of either, . . . the officer shall also issue a written notice to the accused in substantially the following form:
AVOID MULTIPLE COURT APPEARANCES
If you intend to plead 'not guilty' to this charge, or if, in addition, you intend to demand a trial by jury, so notify the clerk of the court at least 5 days (excluding Saturdays, Sundays or holidays) before the day set for your appearance. A new appearance date will be set, and arrangements will be made to have the arresting officer present on that new date. Failure to notify the clerk of either your intention to plead 'not guilty' or your intention to demand a jury trial may ...