Appeal from the Circuit Court of Du Page County. No. 88-CF-749-01. Honorable Edward W. Kowal, Judge, Presiding.
Released for Publication February 23, 1994.
The opinion of the court was delivered by: Geiger
JUSTICE GEIGER delivered the opinion of the court:
After a bench trial in the circuit court of Du Page County, the defendant, Michael W. Gwinn, was convicted of felony retail theft (Ill. Rev. Stat. 1987, ch. 38, par. 16A-3(a) (now codified, as amended, at 720 ILCS 5/16A-3(a) (West 1992))) and sentenced to two years in the Department of Corrections. On appeal, the defendant argues that his conviction should be reversed because the State filed the information in this case after the statute of limitations for felony retail theft had run. We reverse and remand.
On April 13, 1988, the State filed a complaint stemming from an incident occurring on April 12, 1988, where the defendant carried 20 cartons of cigarettes out of a grocery store in Lombard, Illinois, without paying for them. The defendant appeared in court on May 2, 1988, and waived his right to a preliminary hearing. The State informed the trial court that it was not ready to file an information.
The trial court held a hearing on May 31, 1988, for the purpose of arraignment. The assistant State's Attorney informed the court that he did not have the file for this case and was unprepared to file an information. Defense counsel informed the court that he intended to file a Treatment Alternatives to Street Crime (TASC) petition and therefore did not object to a continuance. The court continued the matter until July 6.
The defendant did not appear at the July 6 hearing. Defense counsel informed the court that the defendant did not appear for an interview with TASC. The court forfeited the defendant's bond. The defendant appeared at an August 10, 1988, hearing on the bond forfeiture, and the court vacated the July 6 forfeiture order.
The defendant did not appear at an August 17 hearing on his TASC petition. The trial court again ordered the defendant's bond forfeited. Neither the defendant nor defense counsel appeared at a September 21 hearing on the forfeiture. The trial court entered. judgment on the bond forfeiture and issued a warrant for the defendant's arrest. On October 21, 1988, the trial court ordered the case placed on inactive status.
At an October 21, 1990, status hearing on the warrant, the trial court asked if there was an information. The assistant State's Attorney replied, "If you don't have any in the file, I don't know, Judge." At an October 25, 1991, status hearing, the trial court asked the same question. The assistant State's Attorney told the court that he "would like to review that."
The defendant was arrested on January 28, 1992, in Cook County, Illinois, on an unrelated offense. He appeared before the trial court on February 14, 1992, and the State filed an information on February 19. The court held a bench trial on June 19, 1992, and found the defendant guilty of retail theft. The trial court denied the defendant's post-trial motion and sentenced the defendant to two years in the Department of Corrections. This timely appeal followed.
The defendant claims that, because the information filed in this cause failed to allege that the offense occurred within the applicable limitations period and failed to plead an exception to the statute of limitations, his conviction must be reversed. The State does not dispute the defendant's claim that the charging instrument in this case is defective and instead argues that the defendant has waived this issue on appeal.
A prosecution for felony retail theft must be commenced within three years after the commission of the offense. (Ill. Rev. Stat. 1991, ch. 38, par. 3-5(b) (now 720 ILCS 5/3-5(b) (West 1992)).) This means that the charging instrument must allege that the defendant committed the offense at some time prior to the return of the indictment or the filing of the information and within the period fixed by the statute of limitations. ( People v. Strait (1978), 72 Ill. 2d 503, 506, 381 N.E.2d 692.) If the charging instrument shows on its face that the alleged offense was committed after the limitations period has run, it must allege facts which would invoke an extended limitations period or toll the running of the limitations period (see Ill. Rev. Stat. 1991, ch. 38, pars. 3-6, 3-7 (now 720 ILCS 5/3-6, 3-7 (West 1992))). ( Strait, 72 Ill. 2d at 506.) The information here alleged that defendant committed a felony offense on April 12, 1988. It was filed, however, almost four years after the alleged date of the offense and did not allege any facts invoking exclusion from the statute of limitations.
If a defendant wishes to raise the statute of limitations as a bar to prosecution, he must file a written motion to dismiss before trial and within a reasonable time after arraignment. If the defendant fails to raise the statute of limitations issue in this manner, this ground for dismissal of the charges will be deemed waived. (Ill. Rev. Stat. 1991, ch. 38, par. 114-1(a)(2), (b) (now 725 ILCS 5/114-1(a)(2), (b) (West 1992)).) The defendant in ...