People v. Herndon
434 N.E.2d 10
Ill. App. Ct.
1982
Check Treatment

*1 386, 402 N.E.2d (1980), 82 (See granted. Jones assistance effective denied hold, was not that Lester trial. at a severance request attorney failed counsel when EARNS, J., P. concur. J., and ILLINOIS, Plaintiff-Appellant,

THE PEOPLE OF THE STATE OF HERNDON, Jackson, SHIRLEY a/k/a

Fifth District No. 80-584 19, 1982. Opinion filed March WELCH, J., specially concurring. Baricevic, (Martin Ashley Stephen of Belleville N. John Norris, Commission,

E. both Attorneys Appellate of State’s Service People. Diehl, Office, H. Appellate Reid and Susan A. both of State Defender’s John Vernon, appellee. of Mt. *2 PRESIDING opinion KARNSdelivered the of the court: The State of Illinois appeals from an order of the circuit court of St. Clair County Herndon, granting the motion dis missing the entering judgment provided by indictment and of dismissalas section 1(a)(2) (Ill. of the Code of Criminal Procedure Rev. Stat. 114— 1979, 38, par. ch. 1(a)(2)).The appeal sole issue raised on is whether 114— the felony prosecution against defendant was barred the statute of 1979, (Ill. 38, limitations 5(b)). Rev. Stat. ch. par. 3— In complaint 25, 1980, filed on it charged that from June 1977, defendant committed the offense of theft over $150 by deception. signed by Larry The was sworn to and Trent, agent of the Illinois of Law Enforcement and by an assistant designated “approved.” on a line 7, 1980,

On July indictment was returned the St. Clair grand jury charging defendant with the same offense that was 25,1980, in April. On July arraigned on the indictment public and a appointed. defender was Defendant moved to dismiss charge grounds appeared on the that it from the dates alleged in the prosecution indictment that the within was not commenced the three-year period fixed the statute of limitations Rev. Stat. 1979, 38, ch. par. hearing, granted After a the trial court 3— defendant’s motion prosecution and found that the was commenced an indictment three-year period returned of limitations. 25,1980, complaint April State contends that the prosecution commenced purposes for it regard, argues limitations. In this is the State participation of the State’s and not the form of the citing document that prosecution, constitutes commencement 222, People v. App. Robins 338 N.E.2d 3d Kleiss 90 App. v. Woollums 379 N.E.2d 1385. We have examined these cases argument. and find that The issue they support do not the State’s properly raised prosecution Robins whether a misdemeanor by complaint commenced within the 18-month here, critical instant case is that distinction between Robins and the Kleiss, complaint charged In the issue was felony. the commission of a upon com- objection whether the defendant had waived plaint file a an information or indictment failure to Here, timely pretrial an issue because defendant motion. waiver pretrial filed a raising objection. that it is the Woollums motion states primary responsibility prosecute a to file and charge. This statement was made in with the court’s discussion connection an evidentiary ruling unpersuasive made for proposition urged by the State.

The State next that the statute limitations was tolled filing of the complaint April, citing 7(c) of the Criminal section 3— and, Rev. Stat. 7(c)) 3— found on period. was within 7(c) provides tolling the limitation statute while 3— prosecution is pending against a defendant for the same conduct. In order apply this statutory provision present accept we first must the State’s contention in April commenced prosecution of felony charge. are of the theory of when a prosecution is erroneous and 7(c) (Ill. 7(c)) is irrelevant to the issue raised on appeal.

The term section 2—16 of the Code 16) as follows: “ *3 legal ‘Prosecution’ proceedings by person’s means all which a liability determined, commencing the for an return offense the indictment or the issuance the including of of the final disposition appeal.” added.) (Emphasis the case 2(a) of the Code of Criminal Procedure of 1963 Rev. Stat. 2(a)) pertinent in the provides, part, follow Ill — ing: prosecutions

“All or indict- felonies shall be information 6 6” ment.6 An information prosecute or in order an accused required indictment felony on a Therefore, offense. the date the indictment is found or the filed marks the the felony commencement of stops running the of the statute limitations. Applying correctly these the principles to instant found that felony charge against of the theft defendant barred by the complaint April filed necessary Because an indictment was or offense, defendant with complaint the the did not commence prosecution. On grand jury returned a true bill which that from 1976 committed June the offense of felony theft. The was found the three- There

year period fore, prosecution of the offense was barred. in supported supreme Our court’s decision here is which reaffirmed v. Strait alleged its face that the established rule that if the indictment shows on statute, must be offense facts was committed outside the facts alleged an statute. No such exception to invoke contained here, any alleged any alleged were to invoke nor do we believe could be recognized exception.

Finally, the State that prosecution of the it was substance charge because information as defined section 102—12 of to the 12). argument that We note this only trial motion was argued against court. The the defendant’s basis Therefore, felony prosecution. was sufficient to commence a theory urged State has waived this time. Furthermore, Bullis App. 3d signed 102—12 a State’s defines an information as a verified against and verified Attorney. “ap It agent of Law Enforcement. was Illinois However, of no proved” we know Attorney. an assistant State’s as a requirement Attorney required prior approval consider precedent complaint, condition and we would to the such approval surplusage. reasons, St.

For the circuit court of foregoing judgment Clair is affirmed.

HARRISON, J., concurs. concurring: specially statement, in except I majority opinion subscribe to all "dicta, prior approval no “we know of filing of a precedent condition required (105 Ill. approval surplusage.” complaint, such and we consider would say If, majority intends to 167, 170.) language, *4 signature charging surplus instrument in a this case was a captioned improperly Attorney assistant State’s disagree. then I must by a An written “a verified court, charges the commission to a which Certainly the 12.) of an offense.” Trent, and the by Agent a statement verified document contained written signature Attorney of the assistant State’s meets v. White Attorney. (People signed by instrument be Rehberger 794; And, pleading, not the body charging because Sirinsky caption, validity determines document instrument as designation 47 Ill. 2d 505), complaint” a “criminal valid cannot alone convert otherwise complaint. into a

Nonetheless, only that trial court argued is sufficient to instrument was and that a felony prosecution. They commence a heard to characterize will be court, as an in this as the instrument information for the first time majority correctly holds. General, SCOTT,

THE PEOPLE ex rel. WILLIAM J. LARANCE, Plaintiff-Appellant, v. H. J.

Fifth No. District 80-433 Opinion February

Tyrone Fahner, General, Chicago (Edward Kay, C. M. Assistant General, appellant.