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The People of the State of Illinois v. Gregg M. Barwan

July 26, 2011

THE PEOPLE OF THE STATE OF ILLINOIS,
PLAINTIFF-APPELLANT,
v.
GREGG M. BARWAN,
DEFENDANT-APPELLEE.
THE PEOPLE OF THE STATE OF ILLINOIS,
PLAINTIFF-APPELLANT,
v.
DAVID M. SANDKAM,
DEFENDANT-APPELLEE.
THE PEOPLE OF THE STATE OF ILLINOIS,
PLAINTIFF-APPELLANT,
v.
SCOTT E. KLICKO, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Boone County.Honorable John H. Young,Judge, Presiding.

The opinion of the court was delivered by: Presiding Justice Jorgensen

2011 IL App (2d) 100689

Nos. 2-10-0689, 2-10-0690, 2-10-0691 cons.

Appeal from the Circuit Court of Boone County. Honorable John H. Young,Judge, Presiding.

Appeal from the Circuit Court of Boone County.) Honorable John H. Young,Judge, Presiding.

PRESIDING JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justices McLaren and Bowman concurred in the judgment and opinion.

OPINION

¶ 1 The above-captioned, unrelated cases were consolidated for decision because they involve the same issue. Each of the defendants, Gregg M. Barwan, David M. Sandkam, and Scott E. Klicko, was charged by indictment with driving under the influence of alcohol (DUI) (625 ILCS 5/11-501(a)(2) (West 2008)) and aggravated DUI as a repeat offender (625 ILCS 5/11-501(d)(2)(B) (West 2008) (noting that a "third violation of this Section or a similar provision is a Class 2 felony")). The charges constituted the third DUI case for each defendant, as each previously had been convicted of DUI and had a second DUI case pending before the trial court. In each case, the defendant moved to dismiss the aggravated DUI charges (725 ILCS 5/114-1(a)(8) (West 2008)) for failure to state an offense and denial of due process, arguing that, although he previously had been convicted of one DUI, his second DUI charge was still pending and, therefore, did not constitute a "violation" under the statute. The trial court granted the motions and subsequently denied the State's motions to reconsider. The State appeals, arguing that the trial court erred in assessing information beyond the indictments that had no bearing on their sufficiency and that the term "violation" in the aggravated DUI statute includes pending DUI charges. For the following reasons, we reverse and remand.

¶ 2 I. BACKGROUND

¶ 3 On August 13, 2009, a grand jury returned a bill of indictment against each defendant for DUI and aggravated DUI.*fn1 Each indictment alleged that the defendant had "previously committed the offense of [DUI] on two prior occasions."*fn2

¶ 4 On December 1, 2009, each defendant moved to dismiss the aggravated DUI charge for failure to state an offense and denial of his due process rights. Each defendant argued that his second prior DUI was a "pending offense" and, therefore, was impermissibly used to elevate the present offense to aggravated DUI. In response, the State argued that the issue of prior violations was a sentencing issue and, thus, would not be ripe for consideration until and unless defendants were convicted.

¶ 5 On May 5, 2010, the trial court heard defendants' motions. The court noted that each defendant's second prior DUI listed in his indictment was actually pending on the judge's call. (The truth of the trial court's observation was not disputed.) On the basis of this information, the trial court dismissed the felony charge in each indictment, finding that, although the term "violation" had a broader meaning than the term "conviction," a "violation" did not include a pending charge.

ΒΆ 6 On June 9, 2010, the State moved to reconsider the court's rulings. The court denied the motions. In each case, the State filed a certificate of impairment and appealed pursuant to ...


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