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12/22/97 PEOPLE STATE ILLINOIS v. VINCE E. GALLEGOS

December 22, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
VINCE E. GALLEGOS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court for the 18th Judicial Circuit, Du Page County, Illinois. No. 95--DT--4670. Honorable Kenneth W. Torluemke, Judge Presiding.

Present - Honorable Tom M. Lytton, Presiding Justice, Honorable Kent Slater, Justice, Honorable Thomas J. Homer, Justice. Justice Homer delivered the opinion of the court. Lytton, P.j., and Slater, J., concur.

The opinion of the court was delivered by: Homer

The Honorable Justice HOMER delivered the opinion of the court:

After a bench trial, the defendant was convicted of driving under the influence of alcohol (625 ILCS 5/11--501 (West 1994)). On appeal, he contends that the 1995 amendment to section 5/1--6 of the Criminal Code of 1961 (720 ILCS 5/1--6 (West Supp. 1995)), which provides that the State is no longer required to prove venue at trial, is unconstitutional. He argues, therefore, that his conviction must be reversed because the State failed to prove venue beyond a reasonable doubt. We affirm.

FACTS

On December 17, 1995, Elk Grove Village Police Officer Frank Vrchota came upon the disabled vehicle of the defendant, Vince Gallegos, near the county line dividing Du Page and Cook Counties. The defendant was charged in Du Page County with driving too fast for conditions (625 ILCS 5/11--601(a)(West 1994)), improper lane usage (625 ILCS 5/11--708 (West 1994)), leaving the scene of an accident involving property damage (625 ILCS 5/11--402 (West 1994)), and driving under the influence of alcohol (625 ILCS 5/11--501 (West 1994)).

The case proceeded to a bench trial. After completion of the State's case, the defendant moved for a directed verdict contending that the State failed to prove venue. In response, the State asserted that the 1995 amendment of section 5/1--6 of the Criminal Code of 1961 (the Criminal Code) (720 ILCS 5/1--6 (West Supp. 1995)) removed venue as an element of a criminal offense and that all objections to place of trial are waived unless raised prior to trial. However, the defendant argued that the amendment was unconstitutional because it violated the separation of powers doctrine.

The trial court denied the defendant's motion for directed verdict finding that although the State had failed to prove venue beyond a reasonable doubt, it was not required to do so. Following the court's ruling, the defendant rested. He was found guilty of driving under the influence of alcohol and not guilty of the other charged offenses. He was sentenced to one year of court supervision, ordered to attend alcohol counseling, and assessed a fine of $300 plus costs. The instant appeal followed.

ANALYSIS

The sole issue on appeal is whether the enactment of the 1995 amendment to section 5/1--6 of the Criminal Code (720 ILCS 5/1--6 (West Supp. 1995)) was unconstitutional. On review, this court presumes that all statutes are constitutional. Based upon this presumption, the party challenging a statute has the burden of clearly establishing the alleged constitutional violation. People v. Anderson, 148 Ill. 2d 15, 22, 591 N.E.2d 461, 464-65, 169 Ill. Dec. 288 (1992).

The defendant contends that the State's obligation to prove venue beyond a reasonable doubt is a "penumbra" of a defendant's constitutional right to trial by jury (Ill. Const. 1970, art. I, § 8). He also argues that this obligation flows from judicial interpretation of our constitution and that it cannot be revoked by the legislature absent a constitutional amendment. He asserts, therefore, that the legislature's attempt do so by its amendment of section 5/1--6 of the Criminal Code constituted a violation of the separation of powers doctrine (Ill. Const. 1970, art. II, § 1). We disagree.

At common law, venue was defined as that particular county, or geographical area, in which a court with jurisdiction may hear and determine a case. See Black's Law Dictionary 1557 (6th ed. 1990). In Illinois, venue in criminal cases has emerged as having two separate elements, one procedural and the other substantive. People v. Carroll, 260 Ill. App. 3d 319, 327, 631 N.E.2d 1155, 1160, 197 Ill. Dec. 696 (1992). The distinction between these two elements is dispositive of the issue at hand.

The procedural aspect of venue is rooted in the Illinois Constitution of 1970 which provides that a person accused of a crime in this state is entitled "to have a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed." Ill. Const. 1970, art. I, § 8. This provision has been interpreted to mean that the accused has a right to be tried in the county where the charging instrument alleges that the offense took place. Carroll, 260 Ill. App. 3d at 327, 631 N.E.2d at 1160. Although the constitution conferred this right upon all defendants, its judicial interpretation reveals that this right was never intended to be unequivocal. See Carroll, 260 Ill. App. 3d at 327, 631 N.E.2d at 1160. Rather, the right is a "privilege" of the accused that may be waived. Therefore, it has long been held that all objections of improper place of trial are waived unless raised prior to trial. People v. McClellan, 46 Ill. App. 3d 584, 587, 360 N.E.2d 1225, 1227, 4 Ill. Dec. 850 (1977).

Consistent with this longstanding interpretation of the procedural aspect of venue, the legislature enacted section 5/1--6 of the Criminal Code which defines the place of trial in particular circumstances. Prior to its ...


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