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02/20/97 PEOPLE STATE ILLINOIS v. JOEL E. DAVIS

February 20, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JOEL E. DAVIS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Randolph County. No. 94-CF-41. Honorable William A. Schuwerk, Judge, presiding.

Rule 23 Order Redesignated Opinion and Ordered Published February 20, 1997.

The Honorable Justice Rarick delivered the opinion of the court. Welch, J., and Maag, J., concur.

The opinion of the court was delivered by: Rarick

ORDER

This cause coming to be heard on defendant's motion to publish, and the court being advised in the premises:

IT IS THEREFORE ORDERED that defendant's motion to publish the Rule 23 Order filed January 24, 1997, shall be and hereby is, GRANTED.

The Honorable Justice RARICK delivered the opinion of the court:

Defendant, Joel Davis, was charged in the circuit court of Randolph County with improper lane usage, illegal transportation of alcohol, and driving at a time when his license was revoked because of a prior conviction for driving under the influence of alcohol, after he had previously been convicted of driving while his license was suspended. At Davis's bench trial the State dismissed the illegal transportation of alcohol charge, and Davis stipulated to the facts on the improper lane usage and that he had operated a motor vehicle at a time when his license was revoked for driving under the influence of alcohol. Davis argued, however, that he was guilty only of misdemeanor driving while license revoked, rather than felony driving while license revoked, because his suspension was pursuant to section 11-501.1 of the Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/11-501.1 (West 1994)) and was not one of the elements which could be used to enhance the offense of driving while license revoked to a felony. The trial court disagreed and found Davis guilty of the felony charge. Davis was sentenced to, inter alia, a two-year term of conditional discharge.

On appeal, Davis first argues that his stipulated bench trial was tantamount to a guilty plea and that the trial court was therefore required to admonish him pursuant to Supreme Court Rule 402 (134 Ill. 2d R. 402). Davis contends that because the trial court failed to so admonish him, his conviction violated his right to due process and must be reversed.

In People v. Horton, 143 Ill. 2d 11, 570 N.E.2d 320, 155 Ill. Dec. 807 (1991), our supreme court addressed the issue of when a stipulated bench trial was tantamount to a guilty plea and when Rule 402 admonishments were required. The defendant in Horton was charged with three counts of armed robbery and two counts of aggravated battery. Prior to trial the defendant filed a motion to suppress identification evidence and quash his arrest. This motion was denied and the defendant subsequently filed a motion to sever the multiple counts against him because the charges arose from three separate incidents. This motion was granted. During the pretrial hearing before the defendant's first stipulated bench trial, defense counsel stated that the purpose of the stipulated bench trial was "to preserve a prior motion to quash arrest and suppress identification ***," and defense counsel stated that the defendant was not contesting the sufficiency of the evidence" (emphasis added by Horton court). Horton, 143 Ill. 2d at 16, 570 N.E.2d at 322. After trial and during closing argument, defense counsel stated, "The defendant[] [is] not contesting the sufficiency of the evidence to convict ***" (emphasis added by Horton court), and "The purpose of the stipulation is to preserve appeal on the previously denied motions to quash arrest and suppress the lineup." Horton, 143 Ill. 2d at 17, 570 N.E.2d at 322. During the defendant's second stipulated bench trial, defense counsel stated that the defendant acknowledged that there was sufficient evidence to convict him of armed robbery and aggravated battery. Horton, 143 Ill. 2d at 17, 570 N.E.2d at 322.

Our supreme court held that the defendant's first stipulated bench trial was not tantamount to a guilty plea, but that the second one was, and that Rule 402 admonishments were therefore required. With respect to the first stipulated bench trial, our supreme court noted that while defense counsel stipulated to the sufficiency of the evidence, he did not stipulate to the sufficiency of the evidence to convict. The court expressed its belief that counsel realized that the defendant's only viable defense theory was the suppression of the identification, and that he opted to proceed through a stipulated bench trial, thereby enjoying the benefits and conveniences of a guilty plea procedure without waiving the suppression issue. In so holding, the court in Horton adopted the rule that a stipulated bench trial is not tantamount to a guilty plea if the defendant preserved and presented a defense. Horton, 143 Ill. 2d at 22, 570 N.E.2d at 324-25.

In Horton, with respect to the defendant's second stipulated bench trial, the court found that defense counsel not only conceded the sufficiency of the evidence but in fact stipulated to the sufficiency of the evidence to convict. "Thus," the court stated, "even though defendant presented and preserved a defense in his second stipulated bench trial, Smith applies and defendant should have 'been afforded the protections set forth in Rule 402.' See [People v.] Smith [(1974)], 59 Ill. 2d 236, 243, 319 N.E.2d 760." Horton, 143 Ill. 2d at 22, 570 N.E.2d at 325.

In the present case, the following exchange took place during Davis's bench trial:

"THE PROSECUTOR: I guess it's -- I guess the point of the hearing is that while he is guilty of the misdemeanor driving while license revoked, the defendant's contention is he is not guilty of felony driving while license revoked because it can't ...


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