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March 3, 1994


Appeal from Circuit Court of Vermilion County. No. 92CF32. Honorable Thomas J. Fahey, Judge Presiding.

As Corrected March 7, 1994. Second Correction March 31, 1994. Petition for Leave to Appeal Denied June 2, 1994.

Honorable Robert J. Steigmann, J., Honorable James A. Knecht, J., Honorable Carl A. Lund, J.

The opinion of the court was delivered by: Steigmann

JUSTICE STEIGMANN delivered the opinion of the court:

In March 1993, the State charged defendant, Carol Smith, with three counts of forgery (720 ILCS 5/17-3(a)(2) (West 1992)) and two counts of perjury (720 ILCS 5/32-2(a) (West 1992)). Later that month, defendant filed motions to dismiss the forgery counts and to suppress all materials obtained pursuant to a State's subpoena. In April 1993, the trial court granted both motions. The State filed an interlocutory appeal, and we affirm the order suppressing the evidence and reverse the order dismissing the charge.


A. Background

In March 1993, the State filed an information charging defendant, in part, with three counts of forgery in violation of section 17-3(a)(2) of the Criminal Code of 1961 (Criminal Code) (720 ILCS 5/17-3(a)(2) (West 1992)). Count I stated the following:

"COUNT I - FORGERY - In that she, between June 1, 1988[,] and February 21, 1989[,] with the intent to defraud, knowingly delivered or caused to be delivered to the Illinois Department of Commerce and Community Affairs (DCCA) Bureau of Tourism a document apparently capable of defrauding Martha Curry; said document being a bid quotation dated January 15, 1989 (a copy of which is attached hereto and by reference made a part hereof as Exhibit 1)[,] which bid quotation was required as part of Tourism Matching Grant Application guidelines which required as follows: '* * * minimum of two competitive bids * * * must accompany the grant application and the itemized budget must reflect the low bid[]'; said document having been sent to DCCA for fiscal year 1989 as part of the grant application submitted on behalf of Balloon Classic Illinois (BCI)[,] * * * of which the defendant was a director and officer; and which document purported to have been signed by Martha Curry, knowing the document to have been made by someone other than Martha Curry and without her authority, on stationery prepared at the defendant's direction to appear to be Domar & Associates stationery, knowing that it was not and purporting to be a competitive bid submitted in conjunction with a bid quotation submitted by the defendant as Carol Smith and Associates in order to create the appearance of compliance with grant application guidelines which required evidence of bid solicitation in order to qualify for the Tourism Matching Grant for for 1989 and thereby receive grant funds and funds from as the advertising vendor for , in violation of Illinois Revised Statutes, Chapter 38, Section 17-3(a)(2)."

Counts II and III alleged substantially the same conduct but at different times. Count II claimed that this conduct occurred between July 1989 and February 1990, while count III stated it transpired between July 1990 and February 1991.

Defendant filed a motion to dismiss the information. After a hearing, the trial court granted the motion, finding that the information failed to adequately allege the offense of forgery. Specifically, the court found that count I failed to set forth facts alleging that the document was "apparently capable of defrauding." The court also ruled that counts II and III "do not state a cause of action upon which there could be a defense."

B. Standard of Review

A trial court evaluates the sufficiency of a charging instrument as a matter of law. This evaluation does not involve assessing the credibility of witnesses or weighing testimony. Thus, because this case does not contain any questions of fact, we review the trial court's decision de novo. See, e.g., People v. Garriott (1993), Ill. App. 3d , , 625 N.E.2d 780, 783; see also In re D.G. (1991), 144 Ill. 2d 404, 408-09, 581 N.E.2d 648, 649, 163 Ill. Dec. 494 ("Where neither the facts nor credibility of the witnesses is contested, the issue * * * is a legal question which a reviewing court may consider de novo").

C. Sufficiency of the Forgery Allegations

In People v. Meyers (Jan. 20, 1994, Nos. 74710, 74711, 74712 cons., slip op. at 2-3), Ill. 2d , , N.E.2d , , the supreme court discussed the appropriate analysis a court should use when reviewing the sufficiency of a charging instrument, as follows:

"A defendant has the fundamental right, under both the Federal (U.S. Const., amend. VI) and the State Constitutions (Ill. Const. 1970, art. I, § 8), to be informed of the 'nature and cause' of criminal accusations made against him. In Illinois, this general right is given substance by section 111-3 of the Code of Criminal Procedure of 1963 [(Procedural Code)] (Ill. Rev. Stat. 1991, ch. 38, par. 111-3(a)). Section 111-3 is 'designed to inform the accused of the nature of the offense with which he is charged so that he may prepare a defense and to assure that the charged offense may serve as a bar to subsequent prosecution arising out of the same conduct.' [Citation.]

When, as here, the sufficiency of the complaint is attacked in a pretrial motion, the standard of review is to determine whether the complaint complies with the stated requirements of sections 111-3. [Citations.] Section 111-3(a) demands that the charging instrument be in writing, stating the name of the offense and the relevant statutory provision violated, setting forth the nature and elements of the offense and the date and county in which the offense occurred, and naming the accused if known or a reasonably certain description. [Citation.] An instrument which charges an offense in the language of the statute '"is deemed sufficient when the words of the statute so far particularize the offense that by their use alone an accused is apprised with reasonable certainty of the precise offense with which he or she is charged."' [Citation.]"

Thus, "the relevant inquiry is not whether the alleged offense could be described with greater certainty, but whether there is sufficient particularity to enable the accused to prepare a proper defense." (Meyers (Jan. 20, 1994, Nos. 74710, 74711, 74712 cons., slip op. at 5), Ill. 2d at , N.E.2d at .) However, if the charging instrument fails to properly set forth the elements of the offense, the trial court should grant ...

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