THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MARIO ALFONSO, Defendant-Appellee.
No. 1-87-3650
First District (2nd Division)
November 28, 1989
191 Ill. App. 3d 963
Massucci, Blomquist, Brown & Judson, of Arlington Heights (Ernest Blomquist and Brian Crowley, of counsel), for appellee.
JUSTICE HARTMAN delivered the opinion of the court:
The subject of this appeal concerns the application of
On September 2, 1987, defendant was arrested in Schaumburg, Illinois, and charged with driving under the influence of alcohol, following too closely, failing to signal when required, driving on a revoked license and transportation of open alcоhol, The arresting Schaumburg police officer scheduled defendant‘s first court appearance for September 15, 1987, 13 days after the arrest. Defendant appeаred on September 15 and requested a continuance to arrange for an attorney. The continuance was granted to October 20, 1987. On that date, defendant‘s attorney appeared and orally moved to dismiss pursuant to
On October 27, 1987, a hearing was conducted on defendant‘s written motion to dismiss. The arresting officer testified that he scheduled defеndant‘s court appearance on September 15, 1987. Although this date was one day earlier than the 14-day minimal time limit set forth in the guidelines of
Defense counsel argued that the courtroom in which defendant‘s case would have bеen heard was in the same facility in which the police station was located. Counsel also claimed there were at least nine court dates for the Schaumburg police department on the court calendar prosecuted by the State‘s Attorney‘s office within the prescribed time period. Lastly, defense counsel stated that the adjоining communities of Elk Grove Village, Hoffman Estates, and Hanover Park had assistant State‘s Attorneys available during the time period at issue. In response, the State admitted that the case was not set within the 14- to 49-day period prescribed by
The circuit court granted defendant‘s motion to dismiss, pursuant to
“the officer wаs present in court and did testify on the 49th day on one of his regular key dates. *** [E]vidently it was very practicable to be here because he was here and that was his scheduled date.”
The court then concluded:
“The officer had a practicable date on the 49th day, undisputed. He chose, in good faith, to set a different date because he was concerned about the 46 days of the summary suspension. *** However, under those Supreme Court Rules, I do not believe that Rule 504 was followed. It was obviously practicable to set the uniformed [sic] traffic citatiоn for the 49th day. And, therefore the uniform traffic citation charges will be dismissed pursuant to Supreme Court Rule 504.”
The State appeals.
The State first contends the circuit court abused its discretion when it granted defendant‘s motion to dismiss, suggesting defendant waived his right to present the motion by failing to do so at his initial court appearance. This contention is without merit; defendant‘s objection to his аppearance date was raised in a timely fashion and addressed thoroughly by the circuit court at the October 27, 1987, hearing.
The State next contends the dismissal was improper because it was impracticable to schedule defendant‘s appearance date between the 14- to 49-day period set forth in
The question on appeal, therefore, is not whеther the failure to schedule defendant‘s appearance date within the time period of
“To comply with the rule, an arresting officer should schedule [timely] appearance dates ‘whenever practicablе,’ notwithstanding the directory construction we hereby give to the rule.” (Emphasis added.)
The good intentions of the arresting officer or the convenience of the parties arе irrelevant where, as here, it was practicable to set the appearance date within 14 to 49 days after the date of the arrest.
Therefore, we must determine whether the circuit court abused its discretion in finding that it was practicable to set the appearance date within the rule-prescribed 14- to 49-day period after defendant‘s arrest. In the instant case, defendant‘s appearance date was scheduled 13 days after his arrest, rather than the 14-day minimum specified in
In light оf its careful review of the circumstances, we simply can
Affirmed.
BILANDIC, P.J., concurs.
JUSTICE SCARIANO, dissenting:
I respectfully dissent. As the majority opinion notes, the supreme court held in Village of Park Forest v. Fagan (1976), 64 Ill. 2d 264, 267, 356 N.E.2d 59, that the language of
Here, although it appears to have been practicable to have set the case within the time frame of the rule, the record establishes that the officer did not do so because he thought he had to schedule the matter before the defendant‘s statutory summary suspension went into effect. The trial judge acknowledged that the officer “chose, in good faith, to set a different date because he was concerned about the 46 days of the summary suspension. Nobody could fault him for that.” Nevertheless, the judge dismissed the “charges pursuant to
Defendant does not disagree with the trial judge‘s finding that Officer Young аcted in good faith when he missed complying with
I therefore find it difficult to understand how Officer Young‘s sincere attempt to accommodate defendant, in the words of our supreme court in Fagan, caused “any injury to [the] public interest or [to] private rights.” Nor do I read the supreme court‘s holding in Fagan “that the time limitations in
Accordingly, I would reverse and remand the cause for trial.