*1 8(a)(3) ability payment. any “[a]t Subsection allows a claimant time” to “obtain treatment he desires at his own medical 305/8(a)(3) (West 2004). expense.” 820 ILCS
CONCLUSION reason, County For this we affirm the circuit decision Cook court, which confirmed the Commission’s decision.
Affirmed.
McCULLOUGH, P.J., HOFFMAN, GROMETER, and DONO VAN, JJ., concur. ILLINOIS,
THE PEOPLE OF THE Plaintiff-Appellee, STATE OF PHIPPS, CRAVEN Defendant-Appellant. F.
Second District No. 2 — 06—0423 Opinion May filed Rehearing denied June 2008. 2008.— *2 J.,
O’MALLEY, dissenting. White, Appellate of State Christopher both and R. Thomas A. Lilien Office, appellant. Elgin, for Defender’s (Lawrence M. Bauer and Nicolosi, Attorney, of Rockford
Philip State’s J. Kripke, Office, Attorneys Appellate Joan M. both of State’s Prosecutor’s counsel), People. for the opinion
JUSTICE GILLERAN JOHNSON delivered the court: defendant, F. Phipps, pleaded guilty Craven DUI) (625
driving under the (aggravated influence ILCS 5/11— 501(d)(1)(F) (West 2004)) and years’ imprison- was sentenced to 12 ment. Following the denial of his guilty plea, motion withdraw his timely the defendant filed appeal. notice of On appeal, the defendant argues that he was deprived of the effective assistance of counsel at plea proceedings. We reverse and remand for proceed- additional ings. 5, 2004,
On April the defendant drove a car that collided with a car driven MaLocka Gille. Gille died as a result of the collision. Im- mediately following collision, the defendant was ticketed for violat- ing a local traffic ordinance and for one count of driving under the (625 501(a)(2) (West 2004)). influence ILCS April On 5/11 — charged by indictment with one count of reckless 3(a) (West 2004)). homicide ILCS The indictment indicated 5/9— that the charge was a 2 felony, subject Class special sentencing.
We note
prior to
section 9—3 of the Criminal Code of
*3
(Criminal Code)
1961
generally classified reckless homicide as a Class
(720
3 felony, punishable by two to
years
prison
five
in
ILCS 5/9—
3(d)(2) (West
8—1(a)(6) (West
2002);
2002)).
730 ILCS
In addi-
5/5 —
3(e)
tion to
general
that
classification, section
provided
pertinent
in
9—
part as follows:
“[I]n cases involving reckless homicide in which the defendant
was determined to have been under the
any
influence of alcohol or
drug
drugs
other
or
offense,
as an element of the
or in cases in
which the
proven beyond
defendant is
a reasonable doubt to have
been under the
any
influence of alcohol or
other drug
drugs,
or
penalty shall be a
2 felony,
Class
for which a
if
person,
sentenced to
a term of imprisonment, shall be sentenced to a term of not less
3(e)
years
than
years.”
3
and not more than 14
720 ILCS 5/9—
(West2002).
July 18,
Effective
2003 (approximately
prior
nine months
to the
committing
offense),
defendant
the instant
the legislature amended
(Pub.
section
9—3 of the
§7,
Criminal Code
Act
July
eff.
93—
2003) in response to our supreme court’s decision in People v.
Pomykala,
1050 was reckless unless jury presume was to 207-08. Under 203 Ill. 2d at Pomykala, otherwise. proved remained reckless homicide newly version of section enacted 9— years prison five in ILCS felony by two to punishable a 3 Class (West 2004)). 8—1(a)(6) (West 3(d)(2) 2004); 730 ILCS 5/5 — 5/9 — changes to section However, significant 93—213 made Public Act 9— homicide (e), which reckless removing subsection under including (alcohol felony 2 a drugs) was classified as Class involving DUI or years prison. in by 3 to punishable 501(d) of the addition, Act amended section Public 93—213 11— 501(d) (West (Vehicle Code) (625 ILCS
Illinois Code Vehicle 5/11 — DUI, similar to by adding language 2004)), aggravated defines which 3(e) section the removal of Code to offset section of the Criminal 9— 11— 3(e). section Public Act 93—213 added In particular, 9— 501(d)(1)(F) part as Code, pertinent in provides of the Vehicle follows: committing [s]ec- a violation of this of
“Every person convicted of the influence driving under guilty of tion shall be or com- intoxicating compound alcohol, drug drugs, or or other thereof if: or combination pounds, (F) person, in committing a * * [*] [DUI] violation ***, was vehicle, snowmobile, or vehicle, all-terrain in motor involved person, of another in the death accident that resulted watercraft *** cause of the death.” proximate was a when the violation 2004). 501(d)(1)(F)(West ILCS 5/11— 501(d)(2) in provide, also amended section Public Act 93—213 11— (alcohol is a drugs) or Class part, pertinent prison in if the violation 501(d)(2) (West years of to 14 range felony penalty with a person. 625 ILCS death of one resulted 2004). 5/11 — counsel, State, law, the defense change in the Despite this had not been statute reckless homicide acted as trial court all informed the trial counsel defense August On amended. reckless guilty to entering plea would be court that sentencing cap recommending a State exchange for the homicide if, the State based asked The trial court then years’ imprisonment. 3 to 14 range was sentencing sentencing provisions, special on the *4 The trial court that it was. indicated The State imprisonment. years’ agreement, plea based on the the defendant admonished then imprison- years’ to 12 upof receive a sentence could he could he understood indicated that ment. The trial court The imprisonment. years’ to 12 upof receive a sentence judgment entered a of subsequently accepted plea, defendant’s conviction, investigation of preparation presentence and ordered the a report. sentencing,
On the State filed a mo- prior November that the guilty plea. tion to vacate the defendant’s The State asserted legislature had found the statute under which the defendant had (720 3(a) (West 2004)) pleaded guilty to be void. The State ILCS 5/9— further appropriate charge against asserted 501(d)(1)(F)(West 2004)). ILCS 5/11 —
(We note that the
incorrect.
State’s rationale
its motion was
legislature
had not determined that the reckless homicide statute
Lush,
was void. See
636-37
Rather,
legislature
had amended that statute so as to remove the
mandatory presumption language
special sentencing provi
and the
636-37.)
Lush,
sions. See
On December the trial court conducted a hearing on the State’s motion. explained Defense counsel to the court: [the
“It’s and defendant’s] State’s intention at this time to previous vacate the plea homicide, entered on the reckless same exact behavior encompassed aggravated driving under the influence of alcohol statute. believe it ques- We eliminates tion regarding validity if plea of the statute we vacate the homicide, the reckless plea enter a instead to ag- of gravated DUI.”
After the State indicated agreed that it with defense counsel’s state- ment, the trial granted court the State’s motion to vacate the defendant’s plea. The State then charging filed an information defendant with DUI. The alleged: information “That on or day about the 5th of April, County in the of Winnebago, Illinois, State of CRAVENPHIPPS committed the of- fense of AGGRAVATEDDRIVINGUNDER THE OF INFLUENCE in that ALCOHOL he drove a motor vehicle within this state while under alcohol, the influence of in violation of 625 ILCS 5/11— 501(a)(2), was involved in a upon public motor vehicle accident highway, namely Street, Rockford, Illinois, Auburn city in the Gille, with a motor vehicle being driven Malocka said motor vehicle causing Gille, accident the death of Malocka and said viola- proximate tion was the cause of the death of MalockaGille in viola- 501(d)(1)(F). (Class tion of 625 ILCS 2 Felony Special 5/11 — — Sentencing Range years of 3 to 14 imprisonment [sic] —Max. $25,000).” Fine The defendant preliminary hearing waived plea guilty entered a aggravated DUI, accepted day. the trial court on the same
On December following hearing, the trial court *5 1052 14, January On years’ imprisonment. to 12
sentenced the defendant plea his and a 2005, guilty filed a motion to withdraw the defendant 29, 2006, following a On March motion to reconsider his sentence. The defendant thereafter the trial court denied the motions. hearing, timely appeal. notice of filed a denied the effec argues that he was appeal,
On the defendant his the defendant contends that Specifically, of counsel. tive assistance plea to revise the to the State’s motion objected counsel should have homicide, felony, 3 to reckless a Class agreement plea to vacate the DUI, 2 aggravated of a Class with that and substitute compulsory under the argues the defendant felony. Additionally, in all statute, required prosecute State is to joinder bring an DUI As the State failed to single prosecution. custody, in days being placed of his charge against him within 120 5(a) (West statute ILCS thereby violating 5/103— ineffective for not his counsel was 2004)), argues him charge against filing an objecting to the State custody. days 241 after he was taken into first appeal, defendant’s we addressing the merits of the Prior to that, by guilty, the defendant argument pleading address the State’s of his the effectiveness right challenge appeal on has waived his relies on the law set this the State making argument, trial counsel. In (2007), Stone, 980, 984-85 3d People in v. 374 forth provides: all non- voluntary guilty plea waives that a
“It is well established er including constitutional jurisdictional irregularities, or errors 543, Townsell, guilty plea ‘[A] 209 Ill. 2d People rors. v. in preceded has it chain of events which a break in the represents solemnly has defendant a criminal process. the criminal When offense with guilty in fact of the court that he is open admitted in independent raise may not thereafter charged, is he which he rights that oc of constitutional deprivation to the relating claims may only attack the He entry guilty plea. of the prior curred to the by showing guilty plea intelligent character voluntary and was not within from counsel advice he received Henderson, 258, 411 U.S. in McMann.’ Tollett set forth standards (1973), citing S. 93 Ct. 36 L. Ed. 763, 773, 759, 771, Ed. 2d Richardson, 25 L. 397 U.S. McMann v. (defendant (1970) was show that advice must 90 S. Ct. attorneys of demanded competence range ‘within the not cases’).” Stone, App. 3d at 984-85. criminal attorney’s represen that his arguing appeal Here, is competence range not within plea proceedings tation at did not Thus, defendant cases. attorneys in criminal demanded of right challenge waive his the effectiveness of his counsel’s (1994) representation. Palmer, See 162 Ill. 2d (supreme appeal court considered on direct issue of defense counsel’s at plea proceedings). effectiveness
The State further argues right that the defendant has waived the challenge representation the effectiveness of his counsel’s because he did not raise guilty plea. that issue his motion to withdraw his The State correctly notes that the trial court allowed the speak with another attorney regarding pursue whether he wanted to an ineffective-assistance claim. The defendant informed the conflict attorney Thus, that he did not pursue wish to that claim. original defendant’s represent counsel continued to him at the hearing on his motion guilty to withdraw his plea.
Even though the trial court gave opportunity the defendant to raise an ineffective-assistance claim proceedings at the below and the so, defendant chose not to do we do not appropri believe it would be ate to determine that the defendant is now procedurally barred from raising appeal. that issue on Waiver is a parties, limitation on the but does not limit the ability court’s Peden, consider the issue. People v. (2007). 463, 377 App. Ill. 3d 470 parties Because both the and the trial court demonstrated some confusion legislature’s as to the effects of the amendment of statute, the reckless homicide the waiver rule should be relaxed.
Having determined that the issue has not been waived for our review, we our perplexity note that the State raised argument no in its appellate brief other than waiver. The cases cited above as to when the waiver applies doctrine are Moreover, not novel. although the State has the right to argue any procedural basis to affirm the trial court’s judgment, we believe that to rely solely basis, on particularly when the defendant is asserting the substantial deprivation of a constitutional right, is inappropriate. The role of the State on appeal is just more than arguing that the lower court’s decision should be af- firmed. The State’s role is provide arguments and, sounded in law necessary, below, concede errors help ensure that this court just reaches a resolution of the case before it. See United States v. Wade, 218, 388 n.5, U.S. 1149, n.5, 256 18 L. Ed. 2d 1174 87 S. Ct. (1967) 1926, 1947 (White, J., n.5 concurring in part dissenting part, joined by Stewart, JJ.), Harlan and quoting Berger v. United States, 78, 88, (1935) 295 1314, 1321, 629, U.S. 79 L. Ed. 55 S. Ct. 633 “ (setting forth that the obligation State’s in a prosecution criminal ‘is ”). not that it shall win a justice case but that shall be done’ Turning to the merits of the defendant’s appeal, we first observe that a claim of ineffective judged assistance of counsel is according to
1054 v. test established Strickland two-prong, performance-prejudice (1984). 674, 668, 104 S. 2052 80 L. Ed. 2d Ct. 466 U.S. Washington, Albanese, 285, (2004); v. 104 Lawton, People 2d 302 212 Ill. People v. (1984). Strickland, a 504, To obtain relief under Ill. 2d 526-27 fell below performance counsel’s prove must that defense defendant this substandard and that objective standard of reasonableness an probability reasonable by creating a prejudice caused performance have been differ errors, the trial result would that, but for counsel’s (2006). 3d 1034 Boyd, App. People ent. speedy- his client on discharge seek of attorney’s
“An failure to of counsel ineffective assistance will be deemed grounds generally trial would have the defendant probability a reasonable if there is and no discharge been made timely motion for discharged had a been bring such attorney’s failure to for the proffered has been justification Peco, (1994); People v. Staten, 431 159 Ill. 2d a motion.” of success the likelihood “We address Ill. 3d justi was counsel discharge analyzing whether a motion to before See speedy Boyd, trial.” declining fied in to move for at 1034. 5(a) Procedure of 1963 of the Code Criminal
Section 103— from days to a trial within a defendant is entitled provides that occasioned his own acts custody into unless the date he was taken 2004). 5(a) (West case, In this the defendant delay. ILCS 5/103— arose from All of the offenses custody April on 2004. taken into was charges against incident, the State filed single but charged was April dates. On two different 1, 2004, the On December homicide. committing reckless with DUI. charged *7 days at speedy-trial determining the number The rule brought charges are additional when new and to the State tributable v. People initially stated defendant was charged against previously (1981): 241, 248-49 Williams, 3d as same facts from the charges arise new and additional “Where these facts knowledgeof State had charges and the original did the time within which prosecution, of the the commencement at subject to the charges is additional on the new and begin is to trial charges. original applied to statutory that is limitation same original the trial of with obtained in connection Continuances new respect to the to defendants be attributed charges cannot charges and additional these new charges because additional obtained.” were those continuances when before the court were not Williams, at 248-49. court (2003), supreme our Williams, Ill. 2d 191
In
only
approval
applies
reiterated its
of the rule but stated that it
to
joinder
charges
subject
compulsory
new and additional
that are
to
(West
under section 3—3 of the Criminal Code
ILCS 5/3—3
2004)). The
statute should not
speedy-trial
court concluded that the
interpreted
require joinder
already
by
be
to
that is not
mandated
sec
Williams,
tion 3—3 of the
The harm in a result is obvious: a trial ambush. The delays State lull acquiescing pretrial could the defendant into serious, pending charges, while it for a trial on more not- prepared yet-pending charges. presume We cannot that a defendant would agreed have to a continuance if had charges. he faced both As presciently observed, Justice Kuehn ‘All requests choices about delay that would proceedings would be made under a false understanding deception.’ as a result of this When the State filed the more charges, serious the defendant would face a Hobson’s choice between a trial adequate preparation without and further pretrial detention prepare Today, for trial. we do not create a loophole Instead, for criminal loophole defendants. we closea would statutorily allow the State to circumvent a implemented Williams, right.” constitutional quoting People 204 Ill. 2d at (2002) Williams, No. 5—99—0452 (unpublished order under 23) Supreme (Kuehn, J., dissenting). Court Rule case, this period original charges for the will apply also to the charge only charge if the new subject compulsory joinder. compulsory-joinder provision Criminal Code states as follows:
“(a) may When the same conduct of a defendant establish the offense, commission of more than may one be prosecuted for each such offense.
(b) If the several proper prosecuting offenses are known to the officer at the time of commencing prosecution and are within jurisdiction court, single they of a prosecuted must be in a single prosecution, (c), except provided they as Subsection are based on the same act.
(c) When or more offenses are charged required as Subsec- (b), tion the court in justice may the interest of order that one or more of such separately.” shall be tried 720 ILCS 5/3—3 (West2004). Here, the reckless homicide set forth that on April *8 alcohol, involved 2004, defendant, under the influence of was the while aggravated DUI that killed the victim. a motor vehicle accident 5, 2004, defendant, the while under charge April also set forth that on alcohol, in a motor vehicle accident that the influence of was involved Thus, charges that both arose from the apparent killed the victim. it is County jurisdic and thus were within the Winnebago same conduct in Moreover, the record reveals that the single of a court. a review of tion of both offenses when the prosecutor should have been aware charges should originally Accordingly, indicted. both defendant (West proceeding. in the same See 720 ILCS brought have been 2004); 5/3—3 (1998). 1, the did not 183 Ill. 2d As State People Quigley, months after the charge eight DUI until almost bring aggravated the charge DUI was not custody, had been in the defendant speedy right violated the defendant’s timely filed and therefore seeking not to have therefore ineffective for trial. Defense counsel was 363 Ill. speedy-trial grounds. Boyd, on See that dismissed remedy speedy-trial is a that the defendant’s 3d at 1039. We conclude 363 Ill. 3d at charge. Boyd, See discharge of the 1039. the State’s reliance ruling, unpersuasive
In so
we find
case,
charged the
the State
Woodrum,
Here, Woodrum, unlike in against the second indictment the above, defendant was based on a explained different statute. As at the time the homicide, defendant was indicted reckless for he could be sentenced to a maximum of five years’ imprisonment specific for that 3(d)(2) (West 2004); offense. See 720 ILCS 730 ILCS 5/9 — 5/5—8— 1(a)(6) (West 2004). (Under statute, the reckless homicide certain present, factors were such occurring as the offense in a construction zone, the offender could be beyond sentenced to a term years’ five (f) (West imprisonment. 3(e—7), (e 8), (e 9), See 720 ILCS 5/9 — — — 2004). case.) None of applicable those factors are in the instant Under the subsequent DUI, information for aggravated the defendant could be sentenced years’ to a maximum of 14 imprisonment. See 625 ILCS 501(d)(1)(F) (West 2004). Based on the penalties different for 5/11 — the different statutory charges, the “virtually indictments were not Rather, identical.” the charges in the second indictment were “new and additional.” Accordingly, Woodrum require does not a different result this case.
The dissent’s conclusion that
indistinguishable
Woodrum is
from
the case at
comport
bar does not
with the material facts of this case.
Here, after the defendant was involved in the fatal automobile ac
April
cident on
the State
option,
had the
based on the specific
issue,
conduct at
charging
of
the defendant with reckless homicide
(having a maximum
years’
sentence of five
imprisonment), aggravated
DUI (having a
years’
maximum sentence of 14
imprisonment), or
both. The
charge
State chose to
single
the defendant with a
offense of
light
reckless
In
specific allegations
homicide.
indictment,
the
the fact that
the indictment
included a notation
reckless
charge
homicide
2 felony, subject
a Class
special sentencing,
to
does not mean that the State
beyond
could seek a sentence
the statu
tory
years.
maximum of
five
See
People Reyes,
3d
(2003) (sentence
void).
beyond
statutory
maximum is
If the
State
pursue
wanted to
the new and
charge
additional
of
against
defendant,
the State was obligated
bring
to
charge within 120 days
custody
after the defendant was taken into
for
reckless homicide. See
bring timely the new in a the defendant’s conviction aggravated DUI cannot stand. provided defendant effec arguing that defense counsel with Williams, additionally upon dissent relies representation,
tive Witt, Ill. 2d at misplaced reliance on cases is as neither case involved
dissent’s those accept plea who was his counsel to a defendant advised defense agreement statutory in which exceeded the possible sentence maximum. aggravated DUI conviction must be
Having determined that the reversed, to we next address whether there is basis allow the against bring again of reckless homicide State brief, original prayer note in his the defendant’s defendant. We that his DUI be reversed and relief was conviction him plead original be to allow anew the that the cause remanded file parties supplemental ordered the charge. reckless homicide We may charge again briefs to address whether the State reviewing Upon all of the original charge. with the reckless homicide briefs, that it is agree we within supplemental *10 bring against charges State’s discretion whether 201 again People Flanagan, App. Ill. 3d for reckless homicide. See v. would 1076 The issue of whether these withstand Cot yet ripe People a to dismiss not for our review. See motion is (court (1986) not issue trell, App. Ill. 3d 368 will consider 141 review). for ripe that is not reasons, we reverse the defendant’s conviction foregoing
For the consistent proceedings DUI and we remand for additional with opinion. this with directions.
Reversed and remanded BYRNE, P.J., concurs. O’MALLEY,dissenting:
JUSTICE that defendant’s counsel- majority’s with the conclusion disagree I grounds to the object speedy-trial failing ineffective was view, new my In charging a new instrument. presenting State’s previous charg- in the a formal defect instrument corrected charging charges against defendant. and did not add new ing instrument allege not a new instrument that does charging amended Since an that defendant now trigger concerns speedy-trial crime does not neither objection argues, failure to raise counsel’s prejudicial nor to defendant. assistance unreasonable
1059 alia, occurred, person, where a In reckless homicide inter unintentionally person killed another justification, without lawful vehicle. 720 driving the cause of death consisted of the of a motor 3(a) (West 2002). felony, 2 ILCS The offense became a Class 5/9 — punishable by years’ imprisonment, 3 to 14 “in cases in which the to have been under proven beyond defendant is a reasonable doubt 2002). 3(e) (West the influence of alcohol.” 720 ILCS 5/9 — driving person under the influence of alcohol occurred where a drove a (625 501(a) vehicle while under the influence of alcohol ILCS 5/11 — (West 2004)), and the offense 2 felony became the Class driving influence, under the punishable by years’ imprison 3 to ment, person where the ac driving the vehicle was involved an (625 cident that 501(d)(1)(F), person caused death of another ILCS 5/11— (d)(2) (West 2004)). Thus, 2 felony the Class versions of both crimes describe precisely precisely the same conduct and have (2008) Gancarz, same elements. See People v. 228 Ill. 2d (Public Act 93—213 “recharacterized the conduct that had been reck less homicide while under drugs ag the influence of or alcohol as gravated driving influence, while under the and retained the sentenc ing years’ structure of 3 to 14 imprisonment”); 3d at amendment aggravated driving under the influence 3(e) language “add[ed] similar to section of the Criminal Code 9— 3(e)”). offset the removal of section 9— The State charged defendant with the 2 felony Class version of Then, reckless homicide. upon learning that the crime had been relabeled aggravated driving influence, under the it charg filed a new ing alleging instrument 2 felony, Class based on the exact same conduct, under the new label. There were no material differences was, between the two charging instruments. The second instrument title, operation if not in an charging amended instrument. I see no problem Witt, type this of formal amendment. Cf. (1992) (no reversible error where the State cited improper indictments, statute in its murder because the indict provided ments warning charges against defendant fair him). *11 Woodrum, supreme argued,
Nor does our
court. In
just
argues,
indictment,
as defendant here
subsequent
that a
original
restated but amended the
his
charges,
right
violated
speedy
intervening delays
by
trial because the
caused
did
speedy-trial
not toll the
to the
indictment.
period
subsequent
as
Woodrum,
charging
alleged
The identi cannot be considered penalties different and thus here carried indicted the time the defendant was According majority, cal. to the “at five homicide, to a maximum of he could be sentenced for reckless conviction, while, felony “[u]nder years’ imprisonment” for a Class DUI, the defendant could subsequent information years’ imprisonment.” of 14 sentenced to a maximum be only a charged indictment disagree original I that the 3d at 1057. explicit instrument included an felony. original charging The Class 3 less, homicide notation, no that the reckless typeface in bold original). Sentencing” (emphasis Special “Class was 2— by the two penalties indicated majority says, the Contrary to what the identical. charging instruments were because, according to my analysis majority disagrees homicide, which, with reckless charged defendant
majority, the State here, carried presented the facts the offense and under at the time of penalty. maximum 14-year of a penalty maximum instead 5-year it wrong approach. While majority takes the 3d at 1057. The in 2004 carried a homicide” labeled “reckless is true that the conduct here, the presented the circumstances penalty maximum under 5-year driv matched charged was conduct with which defendant (and homicide), 2004 reck not 2002 reckless under the influence ing charged Thus, which defendant the conduct for less homicide.1 at penalty, 5-year not a maximum penalty, maximum 14-year carried a that, at all relevant I note offense. further the time of defendant’s charging instru understanding of the times, my parties shared strictly confusing relies doubly because it position majority’s here is 1The (and charge) to in the the facts contained not label “reckless homicide” on the crime, charge the same charging did not instrument that the amended hold label) (and alleged not the strictly the actual conduct but it then relies five-year sentence under carry only a could reckless homicide hold that 2004 (“Under the reckless App. 3d at See 382 Ill. of this case. the facts ***” beyond five a sentence present, statute, factors were if certain homicide in the instant applicable factors are “[n]one of those possible, but years was case”). against charged defendant. conduct rely consistently on the I *12 prepared accordingly. charging ments and their cases The second changed instrument the label under charged, which defendant was and no more. majority decides this the according case to “rule for determin to the State when
ing the speedy-trial days number of attributable new and additional are brought against previously charged added.) (Emphasis 3d at 1054. This rule has defendant.” here, no application where the present any State did not new and ad Likewise, charges. statute, ditional compulsory-joinder upon relies, the majority applies only where the same conduct of a defendant “ ” ‘may establish of more than one offense.’ the commission added.) (Emphasis quoting 3d at 720 ILCS 5/3 —3 (West 2004). Here, offense, and, there was but one again, the rule does apply. not
Indeed, that, the rationale behind the rule for speedy-trial purposes, previously occasioned continuances by caused the defense count against the State regard to belatedly filed additional charges is that a contrary rule could allow ambush.” Wil by “trial liams, 204 Ill. 2d rule, at 207. Under a “[t]he different State could lull into acquiescing pretrial delays pending on charges, while it prepared for serious, a trial on more not-yet-pending charges.” Williams, 204 Ill. 2d circumstances, at 207. Under those a court “can presume not that a defendant agreed would have to a continuance charges.” Williams, he had faced both rationale, Ill. 2d at 207. The like the rule supports, it does not extend to present case. The original charging put instrument here defendant on notice of the same allegations as did the revised charging Thus, instrument. there was no danger of by ambush, trial continuances defendant obtained were sought with full knowledge of charge against him.
The blame for the misguided holding in this case does not lie solely with majority. brief, opening his framed this appeal as involving issue, and, instead of responding on merits, the State in its brief exclusively relied on argu- the waiver ment majority that the correctly rejects. The ignore State’s decision to argument defendant’s on just the merits was not needlessly risky; given majority’s view, it was fatal. Because the argued only State the waiver brief,2 issue in its initial remedy both the fashioned majority and the propose result I timely were reached without input receiving parties’ briefs,
2After initial in which the State did not ad position, dress the merits of supplemental defendant’s briefing we ordered the issue of whether the State would be able to reinstate the reckless homicide charge if we were aggravated driving to vacate defendant’s conviction of under case, then, example This an
from the State. becomes a classic of when present argument. make alternative advocate should an effort an advocacy Thus, agree majority’s I with the criticism of the State’s here. according
I decide Woodrum and hold would this case conduct, alleged new instrument the same and car- charging since the not potential penalty, original, type ried the same as the it was required speedy- defendant’s support “new and additional” argument. trial *13 YUCIS, (Craig Cobine, as re ESTATE OF ELVIGE STAEHLE Deceased J. Yucis, Deceased, Elvige Petitioner-Appellee,
Ex’r of the Estate of Staehle (Madeleine IV, Ward, Appellant)). Cyrus Respondent Mead M. No. Second District 2 — 06—1225 May 29, Opinion filed 2008. brief, supplemental in its The State cited Woodrum influence. as posed parties and instead served question had
largely ignored the we argument on the merits. belated