Appeal from the Circuit Court of Stephenson County. Nos. 93-CM-1836, 93-CM-1837. Honorable Barry R. Anderson, Judge, Presiding.
Rule 23 Order Redesignated Opinion and Ordered Published December 3, 1996. Released for Publication January 6, 1997.
The Honorable Justice Inglis delivered the opinion of the court. McLAREN, P.j., and Thomas, J., concur.
The opinion of the court was delivered by: Inglis
JUSTICE INGLIS delivered the opinion of the court:
On December 15, 1993, defendant, Dean L. Scott, was charged by complaint with the misdemeanor offenses of disorderly conduct (presumably 720 ILCS 5/26--(1)(a)(1) (West 1992)) (No. 93--CM--1836) and resisting or obstructing a peace officer (resisting) (720 ILCS 5/31--1 (West 1992)) (No. 93--CM--1837). Following a bench trial on November 7, 1994, the court found defendant guilty of both offenses and sentenced him to serve concurrent terms of 18 months' conditional discharge. Defendant was ordered to serve 14 days in the county jail with day-for-day credit for the disorderly conduct offense and 7 days in the county jail without day-for-day credit for the resisting offense.
Defendant appeals, contending that the trial court erred (1) in treating as untimely (waived) defendant's challenge to the sufficiency of the disorderly conduct complaint at the close of the State's case in chief, and in otherwise denying defendant's motion to dismiss the charge as insufficient; and (2) in denying day-for-day credit against the sentence for the resisting offense. We affirm in part, as modified, and reverse in part.
The facts will not be recited here in detail except as they are needed to resolve the issues raised on appeal. The charges of disorderly conduct and resisting or obstructing a police officer arose from an incident at the Freeport high school on December 15, 1993. Sergeant Michael Hannan of the Freeport police department was patrolling at the high school parking lot when he observed several altercations between students at the school. Defendant was part of the crowd of students which had gathered to watch the altercations. In Hannon's attempt to separate the students, defendant came up to him, telling Hannan that he had no business being there and that he could not tell the students what to do. Defendant yelled at Hannan and walked in and out of the crowd, with four or five other students following him.
Two other officers arrived to assist Hannon. Hannon asked defendant several more times to leave the scene or he would be arrested. Defendant disregarded Hannon's directives and continued to yell at Hannon and the other officers. According to testimony, the officers attempted to arrest defendant. Defendant resisted, kicking and flailing his arms, while the three officers tried to handcuff him. Eventually, Hannon needed to spray capstun in defendant's face in order to handcuff him. Defendant was finally arrested and ticketed with resisting or obstructing a peace officer and with disorderly conduct.
At trial, following the State's case in chief, defendant moved for a directed finding of not guilty on the disorderly conduct charge. Defendant argued that the charge failed to state a statutory offense. The court concluded that defendant waived this issue by going to trial on the ticket rather than requesting the more specific formal information, verified complaint, or bill of particulars. Thereafter, defendant testified on his own behalf, denying the charges against him.
On November 10, 1994, the trial judge found defendant guilty of both resisting or obstructing a peace officer and disorderly conduct and was sentenced. On December 15, 1994, the court heard and denied defendant's motion to vacate the judgments or to reconsider the sentences.
On appeal, defendant first argues that his challenge to the sufficiency of the complaint at the close of the State's case should not have been deemed waived. See, e.g., People v. Johnson, 69 Ill. App. 3d 248, 250-51, 25 Ill. Dec. 732, 387 N.E.2d 388 (1979) (motion to dismiss during trial did not waive issue and stricter standard applied to determine sufficiency of charge). The State contends that defendant's challenge to the complaint was untimely because it came at the close of the State's case and should be reviewed under the more relaxed Gilmore standard applicable to a challenge made after trial, that is, in a motion in arrest of judgment or in an appeal. People v. Gilmore, 63 Ill. 2d 23, 29, 344 N.E.2d 456 (1976); see People v. Pujoue, 61 Ill. 2d 335, 339, 335 N.E.2d 437 (1975); 725 ILCS 5/116--2 (West 1994) (motion in arrest of judgment; applies relaxed standard). (The Gilmore standard is sometimes referred to as the Pujoue standard.) However, even in attempting to invoke the more relaxed Gilmore standard, the State fails to address in any meaningful way whether the complaint was sufficiently specific to charge the offense of disorderly conduct. We believe that established precedent supports defendant's position, rather than the State's.
Under the more lenient Gilmore standard, a complaint challenged in a motion for arrest of judgment or for the first time on appeal is deemed sufficient if it "apprised the accused of the precise offense charged with sufficient specificity to prepare his defense and allow pleading a resulting conviction as a bar to future prosecution arising out of the same conduct." Pujoue, 61 Ill. 2d at 339; see People v. Benitez, 169 Ill. 2d 245, 257-59, 214 Ill. Dec. 490, 661 N.E.2d 344 (1996); People v. Thingvold, 145 Ill. 2d 441, 448, 164 Ill. Dec. 877, 584 N.E.2d 89 (1991).
When an instrument fails to state an offense, this constitutes a defect implicating due process concerns, and the defective charge may be attacked at any time. People v. DiLorenzo, 169 Ill. 2d 318, 321, 214 Ill. Dec. 846, 662 N.E.2d 412 (1996). Such a challenge to a complaint may be made before or during the trial--even at end of the State's case. People v. Harris, 205 Ill. App. 3d 873, 876, 150 Ill. Dec. 747, 563 N.E.2d 874 (1990); People v. Stanley, 42 Ill. App. 3d 99, 100, 355 N.E.2d 582 (1976). Thus, section 114--1(a)(8) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/114--(1)(a)(8) (West 1994)) permits a defendant to bring a motion to dismiss for the failure to state an offense both before and during trial. Johnson, 69 Ill. App. 3d at 251, citing People v. Clutts, 43 Ill. App. 3d 366, 370, 2 Ill. Dec. 80, 356 N.E.2d 1367 (1976) (cited with approval in Harris, 205 Ill. App. 3d at 876).
When the sufficiency of the complaint is attacked in the trial court either before or during trial, a court determines whether the instrument strictly complies with the requirements of section 111--3(a) of the Code (725 ILCS 5/111--3(a) (1994)). Benitez, 169 Ill. 2d at 257-59; Thingvold, 145 Ill. 2d at 448; Johnson, 69 Ill. App. 3d at 250-51 (strict standard applied). Under that section of the Code--insofar as it is relevant here--the charge must be in writing and allege the commission of an offense by (1) stating the name of the offense; (2) citing the statutory provision alleged to have been violated; and (3) setting forth the nature and elements of the offense charged. 725 ILCS 5/111--3(a) (West 1994); Stanley, 42 Ill. App. 3d at 100. The failure to allege an element of the offense sought to be charged is a fundamental defect which renders the complaint void, and it cannot be amended as in the case of simple formal defects. Johnson, 69 Ill. App. 3d at 250. While a defendant may ...