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People v. Dismuke

Court of Appeals of Illinois, Second District

June 19, 2013

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant,
v.
ANTWON L. DISMUKE, Defendant-Appellee

Held [*]

Defendant’s motion to dismiss his prosecution for unlawful possession of a weapon by a felon and being an armed habitual criminal was properly granted based on the State’s violation of the compulsory-joinder and speedy-trial statutes, since the charges arose from defendant’s possession of cannabis and a handgun, both items were discovered during the same search at the same place, for purposes of the compulsory-joinder statute, defendant committed a single act and both charges should have been brought in a single prosecution, but the weapon charge was not brought until after the 160-day speedy-trial period for the initial charge based on possession of cannabis had expired.

Appeal from the Circuit Court of Kane County, No. 10-CF-2605; the Hon. David R. Akemann, Judge, presiding.

Joseph H. McMahon, State’s Attorney, of St. Charles (Lawrence M. Bauer and Mary Beth Burns, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

Thomas A. Lilien and Kim M. DeWitt, both of State Appellate Defender’s Office, of Elgin, for appellee.

Panel JUSTICE ZENOFF delivered the judgment of the court, with opinion. Justices Hutchinson and Jorgensen concurred in the judgment and opinion.

OPINION

JUSTICE ZENOFF

¶ 1 Defendant, Antwon L. Dismuke, was indicted for being an armed habitual criminal (720ILCS 5/24-1.7(a) (West 2008)) and for unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2008)). The trial court granted defendant's motion to dismiss the charges. The State appeals pursuant to Illinois Supreme Court Rule 604(a)(1) (eff. July 1, 2006). We affirm.

¶ 2 BACKGROUND

¶ 3 On November 19, 2009, Aurora police and special agents of the Bureau of Alcohol, Tobacco, and Firearms executed a search warrant at defendant's residence and arrested defendant and 10 others present at the time. The search warrant was aimed at recovering a firearm, ammunition, and proof of defendant's residency there. Items recovered during the search included a loaded handgun (found under the living room couch), an empty .380-caliber magazine, several containers of cannabis (found in three plastic bags in the kitchen and in a mason jar in the living room), and proof of defendant's residency.

¶ 4 On November 20, 2009, defendant was charged with misdemeanor possession of cannabis. Defendant was booked and fingerprinted, and he posted bond. On December 1, 2009, the cannabis recovered was sent to the Illinois State Police forensic lab. Thereafter, on March 30, 2010, defendant filed a written demand for a speedy trial.

¶ 5 With respect to the handgun recovered in the search, on November 25, 2009, an Aurora police department evidence technician lifted two latent fingerprints from the handgun and returned them to evidence storage. On July 15, 2010, the technician notified an Aurora police investigator that he had recovered a latent fingerprint[1] from the handgun. On September 1, 2010, the police investigator retrieved defendant's fingerprints from the booking sergeant and sent them, with the latent prints recovered from the weapon, to the Illinois State Police forensic lab. A forensic scientist generated a report on September 16, 2010, indicating that a comparison of the suitable latent print recovered from the handgun revealed that it was made by defendant. The Aurora police investigator received the forensics report on September 22, 2010. On October 25, 2010, [2] defendant was indicted for being an armed habitual criminal (a Class X felony) and for unlawful possession of a weapon by a felon (a Class 2 felony). Defendant filed a speedy-trial demand.

¶ 6 For the next year and a half, defendant, alternately represented by the multiple defenders division[3] and private counsel, and appearing pro se, moved several times to dismiss the gun-related charges on compulsory-joinder and speedy-trial grounds. After the trial court denied defendant's first motion to dismiss, he filed three pro se motions to dismiss (one was entitled a supplemental motion). With respect to each motion, the court granted the State's motion to strike because the issues had already been litigated.

¶ 7 Ultimately, on July 6, 2012, defendant, represented by private counsel, filed the motion to dismiss at issue here. The trial court heard argument on the motion on July 18, 2012, and took the matter under advisement. Relying heavily on People v. Hunter, 2012 IL App (1st) 092681, the court granted defendant's motion to ...


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