THE PEOPLE OF THE STATE OF ILLINOIS, Plаintiff-Appellee, v. ARISTIDES DE LA HERA, Defendant-Appellant.
No. 3-10-0301
Appellate Court of Illinois, Third District
August 18, 2011
2011 IL App (3d) 100301
(Note: This syllabus constitutes no part of the opinion of the cоurt but has been prepared by the Reporter of Decisions for the convenience of the rеader.)
On appeal from his conviction for speeding, defendant forfeited the argument that the triаl court erred in admitting evidence of a moving radar reading by failing to raise the argument in a posttrial mоtion and by failing to request the appellate court to review the issue for plain error.
Decision Under Review
Appеal from the Circuit Court of Grundy County, No. 09-TR-10411; the Hon. Robert C. Marsaglia, Judge, presiding.
Judgment
Affirmed.
Gary R. Garretson, of Garretson Law Offiсe, of Morris, for appellant.
Johnathan M. Bates, State‘s Attorney, of Morris (Terry A. Mertel and Thomas D. Arado, both of State‘s Attorneys Appellate Prosecutor‘s Office, of counsel), for the People.
Panel
PRESIDING JUSTICE CARTER delivered the judgment of the court, with opinion.
Justices McDade and Wright concurred in the judgment and opinion.
OPINION
¶ 1 After a bench trial, the defendant, Aristides De la Hera, was convicted of speeding (
¶ 2 On November 13, 2009, the defendant received a citation for speeding after he was clocked by moving radar at 40 miles per hour in a 25 mile-per-hour zone. Over the defendant‘s objection, the circuit court admitted evidence of the moving radar reading. The defendant was convicted and sentenced, and the defendant did not file a posttrial motion prior to filing his notice of appeal.
¶ 3 The defendant‘s sole argument on appeal is that the circuit court erred when it admitted evidence of the moving radar reading. In part, the State responds that the defendant has forfeited this argument because he did not include it in a posttrial motion. The defendant does not agree that he has forfeited the argument. Rather, in his reply brief, the defendant cites to five cases from 1979 to 1986 for the propоsition that he does not have to raise an issue in a posttrial motion after a bench trial to preserve it for appeal.
¶ 4 In People v. Enoch, 122 Ill. 2d 176, 186 (1988), our supreme court held that a defendant must both object to an allеged error at trial and raise the alleged error in a posttrial motion to avoid forfeiture of thе issue on appeal. “The requirement for a written post-trial motion is statutory, and the statute requires that a written motion for a new trial shall be filed by the defendant and that the motion for a new trial shall specify the grounds therefor.” (Emphasis in original.) Enoch, 122 Ill. 2d at 187 (citing Ill. Rev. Stat. 1983, ch. 38, ¶ 116-1 (now
¶ 5 We acknowledge that in other districts of the appellate court, some post-Enoch authority
¶ 6 In DiPace, the Second District cited the Fourth Distriсt‘s opinion in Crowder, which cited to Enoch but also cited the pre-Enoch case of People v. Larsen, 47 Ill. App. 3d 9, 16 (1977), for the proposition in question. Larsen cited to People v. Hoffman, 381 Ill. 460, 466 (1942), which in turn cited to People v. Tobin, 369 Ill. 73, 75-76 (1938). In Tobin, our supreme court stated:
“The People contend that inasmuch as all of the errors assigned relate to the weight and sufficiency of the evidence, they cannot be considered on review because the issue was not raised in the trial court by a motion for a new trial, citing People v. Lehner, 335 Ill. 424 [(1929)], People v. Gabrys, 329 [Ill.] 101 [(1928)], and People v. Marshall, 309 [Ill.] 122 [(1923)]. However, all of these cases were tried by a jury. It has long been the rule in Illinois, in civil cases, that in causes tried by a court without a jury a motion for a new trial is unnecessary to preserve questions of the sufficiency of the evidence. (Sands v. Kagey, 150 Ill. 109 (1894); Jones v. Buffum, 50 [Ill.] 277 [(1869)]; Mahoney v. Davis, 44 [Ill.] 288 [(1867)]; Metcalf v. Fouts, 27 [Ill.] 110 [(1862)].) We said in Mahoney v. Davis, ‘The judge having once passed upon the evidence, it was not necessary to go through the form of submitting it to him again by mоving for a new trial.’ The same reasoning applies with equal force to criminal cases tried by the court without a jury, and, therefore, questions of the sufficiency of the evidence were properly preserved for review though no motion for a new trial was made.” Tobin, 369 Ill. at 75-76.
It is important to note that this propоsition was established prior to the enactment of the Code of Criminal Procedure of 1963 (
¶ 7 In Enoch our supreme court unequivocally stated:
“Prior to 1963, a motion for a new trial was not required when the trial was before the court and not a jury, but the language of sеction 116-1 has changed the law in that respect and a written motion for a new trial is now required in both jury and nоnjury cases.” Enoch, 122 Ill. 2d at 187-88.
Thus, it is clear that the proposition in question–that a defendant does not have to raisе an issue in a posttrial motion after a bench trial to preserve it for appeal–ceased to exist as valid precedent in Illinois when Enoch was decided in 1988.
¶ 8 In this case, because the defendant failed to file a posttrial motion raising his argument and because he does not request this court to review the issue for рlain error, he has forfeited the argument on appeal. See People v. Hillier, 237 Ill. 2d 539, 545-46 (2010).
¶ 9 For the foregoing reasons, we affirm the judgment of the circuit court of Grundy County.
¶ 10 Affirmed.