Appeal from the Circuit Court of Du Page County. No. 01-CF-2289 Honorable Kathryn E. Creswell, Judge, Presiding.
The opinion of the court was delivered by: Justice Kapala
The State appeals from an order of the circuit court of Du Page County dismissing the indictment filed in this cause. For the reasons that follow, we reverse and remand.
On July 13, 1996, defendant, Donald R. Mann, was charged with various traffic offenses by the issuance of four Illinois citation and complaint forms. One of those complaints alleged that on that same date he committed the Class A misdemeanor offense of driving while license revoked (625 ILCS 5/6--303(a) (West 1996)). Defendant signed an individual bond and was required to appear in court on August 20, 1996.
After defendant failed to appear in court on several dates and was arrested several times on bench warrants, the trial court, on May 22, 2001, granted the State's motion to nol-pros the Illinois citation and complaints, allowing the State to enhance the driving-while-license-revoked charge to a felony.
On August 9, 2001, the grand jury returned an indictment charging defendant with the felony offense of aggravated driving while license revoked (625 ILCS 5/6--303(d) (West 1996)) alleging:
"[O]n or about the 13th day of July 1996 at and within Du Page County, Illinois, Donald R. Mann committed the offense of Aggravated Driving While License Revoked in that said defendant drove or was in actual physical control of a motor vehicle on a highway in Illinois, at a time when his driver's license, permit, or privilege to operate a motor vehicle was revoked pursuant to a violation of 625 ILCS 5/11--501, the defendant having been previously convicted of Driving While License Revoked in violation of 625 ILCS 5/6--303, the original revocation being based upon the defendant's conviction for a violation of 625 ILCS 5/11--501, and a prosecution was pending against this defendant for the same conduct from July 13, 1996[,] to May 22, 2001[,] which period is excluded from the applicable limitation under 720 ILCS 5/3--7(c)***."
Defendant filed a motion to dismiss the indictment on the ground that the State failed to file the indictment within three years of the date of the offense, thereby barring the prosecution under the applicable limitations period (720 ILCS 5/3--5(b) (West 1996)). At the hearing on defendant's motion, the assistant State's Attorney argued that the misdemeanor driving-while-license-revoked charge was a prosecution "pending against defendant for the same conduct" as was alleged in the indictment and, therefore, the period of time from July 13, 1996, until May 22, 2001, was excluded from the three-year statute of limitations pursuant to section 3--7(c) of the Criminal Code of 1961 (Criminal Code) (720 ILCS 5/3--7(c) (West 1996)). In response, defense counsel took the position that the criminal proceeding on a misdemeanor charge pursuant to the filing of an Illinois citation and complaint did not constitute "a prosecution" as that term is used in section 3--7(c).
In ruling on defendant's motion to dismiss the indictment, the trial court stated:
"It really comes down to a situation where there was a misdemeanor traffic charge pending by way of complaint which is certainly sufficient for a misdemeanor. But the issue is whether or not that is a prosecution pending since the defendant is now charged with a felony offense.
I find that it is not the same offense. There are additional elements required for purposes of the felony. Although that's presented at sentencing, it's not the same offense for purposes of the prosecution pending.
So for that reason, I find that the prosecution was not commenced within the applicable statute of limitations period and the motion to dismiss will be granted."
The State timely appeals from that order pursuant to Supreme Court Rule 604(a)(1). 188 Ill. 2d R. 604(a)(1).
As a preliminary matter, we take up the State's motion to supplement the record on appeal with the common law record in the misdemeanor proceeding and with the affidavit of the assistant State's Attorney who handled this cause in the trial court. Defendant filed an objection to the State's motion, contending that the common law record in the misdemeanor proceeding and the prosecutor's affidavit are not part of the record in this cause. We ordered that the motion be taken with the case and now grant the State's motion to supplement the ...