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The People of the State of Illinois v. Jessica Herman

IN THE APPELLATE COURT OF ILLINOIS THIRD DISTRICT A.D., 2012


December 13, 2012

THE PEOPLE OF THE STATE OF ILLINOIS AND THE VILLAGE OF FRANKFORT,
PLAINTIFFS-APPELLEES,
v.
JESSICA HERMAN,
DEFENDANT-APPELLANT.

Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois, Appeal No. 3-11-0420 Honorable Domenica A. Osterberger, Judge, Presiding.

The opinion of the court was delivered by: Justice Wright

JUSTICE WRIGHT delivered the judgment of the court, with opinion. Justices Lytton and McDade concurred in the judgment and opinion.

OPINION

¶ 1 A Village of Frankfort (Village) police officer stopped defendant, Jessica Herman, for traffic violations occurring within the Village's boundaries. The officer issued four citations to defendant, each alleging a violation of the Illinois Vehicle Code (625 ILCS 5/11-501(a)(1), -501(a)(2), -502(a), -709 (West 2010)) and naming the People of the State of Illinois as plaintiff. Before trial, the court granted the Village's motion to amend the citations allowing the Village to strike out the State of Illinois as the prosecuting authority and mark the box on the face of the citations to replace the State with the Village as the prosecuting authority. Neither the State's Attorney nor the Village attorney amended the citations to allege only violations of the municipal code. The court found defendant guilty of driving under the influence of alcohol (DUI), a Class A misdemeanor, as charged as a violation of the DUI provisions of the Illinois Vehicle Code. 625 ILCS 5/11-501(a)(1), (c)(1) (West 2010). Defendant appeals her conviction based on the Village's lack of prosecutorial authority with respect to the Illinois Vehicle Code violation. We reverse.

¶ 2 FACTS

¶ 3 Following a traffic stop on July 17, 2010, within the Village's boundaries, defendant received traffic citations for improper lane usage (625 ILCS 5/11-709 (West 2010)), illegal transportation of alcohol (625 ILCS 5/11-502(a) (West 2010)), and two counts of DUI (625 ILCS 5/11-501(a)(1), (a)(2) (West 2010)). The citations named the People of the State of Illinois as prosecutor and were filed with the circuit clerk without modification by the State.

¶ 4 On August 24, 2010, the municipal attorney for the Village filed a motion to amend the citations to designate the Village, rather than the State, as the prosecuting authority, without modifying the statutory basis for the violation. The Village attorney, not the State's Attorney, signed the motion to amend. ¶ 5 The original traffic citations were amended by interlineation on their face by crossing out "State of Illinois" and marking "Village of [Frankfort]" as plaintiff. This change was purportedly approved by an assistant State's Attorney who placed her handwritten initials on the face of the amended citations near the handwritten changes. However, the citations charged defendant with violating the Illinois Vehicle Code without any reference to the Village ordinances.

¶ 6 Following a stipulated bench trial, conducted by the Village attorney, the court found defendant guilty of DUI pursuant to section 11-501(a)(1) of the Illinois Vehicle Code. 625 ILCS 5/11-501(a)(1) (West 2010). Defendant's three remaining charges were dismissed by the Village. The trial court sentenced defendant to 12 months of court supervision and ordered her to pay $1,500 in fines, fees, and costs for the DUI. The record reveals the clerk calculated the fees and costs to total $666 and calculated the fine to be $834.

¶ 7 ANALYSIS

¶ 8 On appeal, defendant argues: (1) the Village was without authority to prosecute defendant for a violation of section 11-501(a)(1) of the Illinois Vehicle Code; and (2) the trial court improperly denied defendant's motion to quash arrest and suppress evidence. First, we address the authority of the Village to prosecute violations of the Illinois Vehicle Code, as alleged in the charging instruments in this case.

¶ 9 Section 16-102 of the Illinois Vehicle Code provides: "The State's Attorney of the county in which [a violation of the Illinois Vehicle Code] occurs shall prosecute all violations except when the violation occurs within the corporate limits of a municipality, the municipal attorney may prosecute if written permission to do so is obtained from the State's Attorney." 625 ILCS 5/16-102(c) (West 2010). In this case, the traffic citations issued by the Village police officer charged defendant with violations of the Illinois Vehicle Code and identified the State as the prosecuting authority.

¶ 10 The record on appeal does not contain written permission from theState's Attorney granting the Village attorney the necessary written authority to prosecute the citations based on the Illinois Vehicle Code. 625 ILCS 5/16-102(c) (West 2010); People v. Koetzle, 40 Ill. App. 3d 577 (1976) (holding that where there is no written permission to prosecute, the municipality had no authority to prosecute violations of the Illinois Vehicle Code). Moreover, the motion to amend the citations presented to the court was not prepared or signed by the State's Attorney's office. Instead, the Village attorney requested the court to modify the State's citations in an attempt to transfer prosecutorial authority from the State to the Village. However, the Village did not make a corresponding request to amend the citations to allege violations of Village ordinances, rather than the Illinois Vehicle Code.

¶ 11 The Village asserts that any lapse in prosecutorial authority is harmless to this defendant because the Village's general traffic ordinance adopts the entire Illinois Vehicle Code and thereby prohibits the same conduct. The Village's argument focusing on harmless error does not recognize that a conviction for a DUI charged as a Class A misdemeanor pursuant to the Illinois Vehicle Code carries a harsher range of punishment than a DUI conviction pursuant to local ordinance.

¶ 12 For example, a court may not impose a fine in excess of $750 following a conviction for a violation of the Village ordinance. 65 ILCS 5/1-2-1 (West 2010). In contrast, a court may impose a fine up to $2,500 for a DUI conviction based on the Illinois Vehicle Code. 730 ILCS 5/5-4.5-55(e) (West 2010). In fact, in this case, the trial court ordered defendant to pay a fine of $1,500, including costs, exceeding the $750 maximum for an ordinance violation. Thus, we reject the Village's notion of harmless error because the fine actually paid by defendant exceeded the $750 limit for any conviction based on a local ordinance violation.

¶ 13 Further, it appears the trial court considered the charged DUI offense to arise solely out of the provisions of the Illinois Vehicle Code, as alleged on the face of the citation, resulting in the appointment, in the trial court, of the public defender at the county's expense and the Office of the State Appellate Defender to represent defendant on appeal. The trial court's approach was not in error since the face of the citation left blank the box showing defendant's conduct violated any Village ordinance and, instead, marked the box showing the citations were based on state statute, namely, the Illinois Vehicle Code.

¶ 14 Understandably, the Village concedes on appeal that it would have been "best" for the Village to amend the citations to show violations of local ordinances, rather than haphazardly changing only the name of the prosecuting authority. We agree. Under these circumstances, we conclude the Village did not acquire the authority to prosecute defendant for a violation of section 11-501(a)(1) of the Illinois Vehicle Code as set forth in the amended citation in Will County case No. 10-DT-1195. Since this issue is dispositive of the case, it is unnecessary to address defendant's remaining argument.

¶ 15 Therefore, we reverse defendant's conviction.

¶ 16 CONCLUSION

¶ 17 For the foregoing reasons, the judgment of the circuit court of Will County is reversed.

¶ 18 Reversed.

20121213

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