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04/18/97 PEOPLE STATE ILLINOIS v. DEBBIE FOCIA

April 18, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,
v.
DEBBIE FOCIA, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois, No. 95--TR--71503. Honorable Martin Rudman, Judge, Presiding.

Released for Publication May 30, 1997.

Present - Honorable Tom M. Lytton, Presiding Justice, Honorable William E. Holdridge, Justice, Honorable Kent Slater, Justice. Justice Slater delivered the opinion of the court. Justice Lytton, specially concurring. Justice Holdridge, dissenting.

The opinion of the court was delivered by: Slater

The Honorable Justice SLATER delivered the opinion of the court:

The defendant, Debbie Focia, was charged with driving while license suspended. 625 ILCS 5/6--303 (West 1992). The trial court dismissed the charge. The State appeals, and we reverse.

The record reflects that on January 13, 1995, the defendant was charged with driving under the influence of alcohol (DUI). 625 ILCS 5/11--501 (West 1992). Her statutory summary suspension took effect on March 1, 1995. On September 27, 1995, the defendant filed a petition to rescind the statutory summary suspension. Before that petition was heard, she received a ticket for driving while license suspended on November 1, 1995. On November 13, 1995, an agreed order was entered rescinding her statutory summary suspension based upon a due process violation. On November 17, 1995, the Secretary of State notified the defendant that her statutory summary suspension was removed from her driving record and rescinded on that date.

Five months later, the defendant moved to dismiss the charge of driving while license suspended. At a hearing on the motion, the defendant argued that the rescission of her suspension retroactively reinstated her license as of March 1, 1995. The trial court agreed. In its order, the trial court found that if the legislature had intended a rescission of a statutory summary suspension to only have a prospective application, it would have used a word other than "rescission" in the statute. Therefore, the court held that the rescission applied retroactively to March 1, 1995, and dismissed the charge.

On appeal, the State argues that the trial court erred in finding that the rescission order had retroactive effect. The State contends that the statutory summary suspension was still in effect until it was removed from the defendant's driving record on November 17, 1995. Thus, the State argues, the trial court erred in dismissing the charge.

Initially, we note that no appellee's brief has been filed in this case. Nonetheless, we may reach the merits of the case because the record is simple and the claimed error is such that the court can easily decide it without the aid of an appellee's brief. First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 345 N.E.2d 493 (1976).

Here, we find that the trial court erred in holding that the rescission of a statutory summary suspension should be applied retroactively. The Illinois Vehicle Code (Code) allows a defendant to obtain a hearing on a statutory summary suspension before the suspension takes effect. People v. Esposito, 121 Ill. 2d 491, 521 N.E.2d 873, 118 Ill. Dec. 396 (1988). The hearing is triggered by the defendant's filing of a petition to rescind. 625 ILCS 5/2--118.1(b) (West 1992). Thus, the question of whether a defendant shall suffer the effects of an improper suspension depends largely on her own diligence. Esposito, 121 Ill. 2d 491, 521 N.E.2d 873, 118 Ill. Dec. 396.

Where the defendant does not obtain a hearing before the suspension takes effect, we find that any subsequent rescission should not be applied retroactively. To hold otherwise would condone the defendant's disregard of the law. Moreover, our ruling is consistent with section 2--118.1 of the Code, which states that a pending hearing on a petition to rescind shall not stay the effect of a suspension. 625 ILCS 5/2--118.1(b) (West 1992). This section implies a general legislative intent that suspensions shall remain in full force and effect until proven to be invalid.

Accordingly, the judgment of the circuit court of Will County is reversed.

Reversed.

The Honorable Justice LYTTON, specially ...


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