*1 III sum, post-convic- In the dismissal of the defendant’s in reversed in part part. tion is affirmed claim post-conviction trial court’s dismissal of counsel on direct challenging appeal the performance the post-convic- is affirmed. The trial court’s dismissal of of defendant’s tion claims relating performance re- however, counsel, trial is reversed. cause proceedings for further manded to the circuit in this opinion. accordance with the views expressed Circuit court part affirmed cause remanded part; reversed with directions. (No. 72884.
(No. 72946.
(No. 72996. ILLINOIS, OF Appel- THE STATE THE PEOPLE OF SCHAEFER, Appellant.-THE HAROLD lee, v. ILLINOIS, Appellee, THE STATE OF PEOPLE OF HILL, Appellant.-THE MICHAEL ROBERT ILLINOIS, Appel- THE OF STATE PEOPLE OF PUCKETT, Appellee. E. lant, v. JACK 25, 1993. February Opinion filed *2 MILLER, C.J., specially concurring. Raimondi, M. Komie and Marco A.
Stephen of Komie Associates, & of Chicago, for appellant. Burris, General,
Roland W. of Attorney Springfield, and Jack State’s of O’Malley, Attorney, Chicago (Terence Madsen, General, M. Assistant of Attorney Chicago, Goldfarb, Roberts, Renee Fotios Randall E. Theodore Stabrawa, Burtzos Attor- and David J. Assistant State’s counsel), of for the neys, People. Sullivan,
Richard H. F. Parsons and Kevin both Peoria, for amicus curiae Illinois for Criminal Attorneys Justice. Weintraub, Reu, Blooming L. of Thomson &
Rex ton, for appellant. Burris, General, of Attorney
Roland W. Springfield, Chicago (Terence State’s O’Malley, Attorney, Jack General, of Madsen, M. Attorney Chicago, Assistant Goldfarb, Roberts, Fotios E. Theodore Renee Randall Stabrawa, State’s Attor- Burtzos and David J. Assistant neys, counsel), People. for the Sullivan, F. H. Parsons and Kevin both
Richard amicus curiae for Peoria, Attorneys Illinois Criminal Justice. *3 General, of Burris, Attorney Springfield, W.
Roland Island, of Rock State’s Douglas, Attorney, Marshall E. Chicago of Attorney, and State’s O’Malley, Jack General, of Madsen, Attorney M. Assistant (Terence Theo- Roberts, Goldfarb, Randall E. Renee Chicago, Stabrawa, David Assistant Burtzos and J. dore Fotios X. John Boyle, and Kenneth R. Attorneys, State’s of Mertel, the Office A. of and Terry Breslin Ottawa, Prosecutor, of of Attorneys Appellate State’s for the counsel), People. of McHugh, Apple- J. Appleton Gregory
Mark A. Aledo, of for appellee. ton McHugh, & Sullivan, H. F. both of Richard Parsons Kevin Peoria, for amicus curiae Illinois for Criminal Attorneys Justice. opinion
JUSTICE BILANDIC delivered court:
In are these consolidated we asked decide appeals, when the within which a statutory 30-day period hearing must be held on a defendant’s to rescind the commences to summary suspension driving privileges run. cases,
In each it is that the defend undisputed ant’s to the challenge summary suspension privileges must be heard within the 30-day per iod, defendant, unless the delay is occasioned by that failure to conduct the within the hearing 30-day per iod violated the defendant’s due In re process rights. Summary Driver’s License Trainor Suspension of 156 Ill. App. held,
This court in People v. Gerke 123 Ill. 2d 85, that the statute at issue created two alternative dates for on a defendant’s hearing challenge (1) on the first date suspension: set traffic citation (which issued motorist must be between and 49 after date of the Ill. 2d days arrest) (134 R. 504); or within 30 written (2) a defendant’s for a on his request (Ill. rescind Rev. 118.1(b)). It was contem par. 2— that the motion plated to rescind made on the court date set the traffic citation could or These be oral written. consolidated cases do not involve an oral motion for a on the date set in traffic citation.
Each the of cases before us involves of filing written to rescind the of summary suspension of with the clerk of the circuit court driving privileges 254 statute,
venue. The governing 118.1(b) section 2— Code, Illinois provides part: Vehicle relevant “Upon summary the notice of statutory suspension 501.1, under make a person may served Section 11— request judicial hearing written for a in the circuit court state the request venue. circuit shall grounds upon person which the seeks to have the statu Within 30 after tory rescinded. the first receipt request appearance written or pursuant date on the Uniform Traffic issued to a Ticket *** shall con violation Section 11— by having jurisdiction.” ducted circuit court Ill. Rev. 95½, ch. par. 118.1(b). 2— ap There is conflict of between various opinion line court districts. One of cases holds pellate 30-day period begins upon filing to run statutory State, served accordance proper petition, upon the cir with rules of this court and rules of practice v. (People Johnson Ill. cuit court of venue. 809, 811.) The other line of cases holds that App. 3d enough. mere is not filing petitioner matter make active to have the attempt must also an Grange heard the court. 981, 986.
App. 3d
PREFATORY NOTE the common issue presented In order to analyze Illinois cases, explain it is first necessary these while with those who drive dealing scheme for Pursu an substance. intoxicating under the influence of Rev. Stat. (Ill. ant 11—501 of Code to section from prohibited individuals are 501), par. under the influ Illinois vehicle within while driving any Any substance. alcohol, or a controlled drugs ence of is subject this statute violating convicted of person *5 1989, 95½, pars. ch. Ill. Rev. Stat. penalties. criminal (d). 501(c), 11— are sub motorists to criminal penalties,
In addition sec licenses. Under of their drivers’ to suspension ject 1989, 95½, Stat. ch. Code Rev. (Ill. tion 11—501.1 Illinois on an drives who 501.1), any person par. 11— 11— section violating is arrested for and public highway blood, consent to a given implied to have 501 is deemed is he or she to determine whether urine test breath, or Prior to adminis or drugs. influence of alcohol under the to the driver test, the officer is warn required tering the test or failure to pass to take the test that refusal or her driving privileges. of his result in the suspension will 1989, 95½, ll-501.1(c).) par. Stat. ch. Rev. (I ll. or urine test if his blood, or An fails a breath individual or if the greater, is 0.10 or her concentration alcohol substance detected. or controlled any of cannabis presence (I 501.1(c).) 95½, ch. par. Rev. Stat. ll. drivers im Illinois has determined legislature threat to “public or drugs pose alcohol paired driving welfare,” and that the suspension safety means to deter an appropriate represents privileges the highway. from these drivers” “problem remove 95½, 6—206.1. 1989, ch. par. Rev. Stat. must the officer testing, fails or refuses
Once a driver or of his of the suspension with notice serve the person 46 days effective which becomes her driving privileges, Stat. Rev. (Ill. is given. notice of the suspension after addition, In 95½, 501.1(f), (g).) 1989, ch. pars. 11— the driv regarding a sworn report, officer must submit test, pass test or failure to take the er’s refusal of State. Secretary court of venue and the circuit 95½, ll-501.1(d).) Upon par. ch. Rev. Stat. (Ill. State notes Secretary this receipt report, record for the period the person’s suspension (Ill. Code Rev. in section 6—208.1 set forth 95½, (establishing length 6—208.1 par. ch. be sus driving privileges may a person’s time for which notice by mailing and confirms the suspension pended)), the motorist suspension of the effective date pars. Rev. Stat. (Ill. the court of venue the summary This court has held 501.1(e), (h)). 11 — in section as provided of a driver’s license process an individual’s due not violate 11—501.1 does Illi or the States Constitution under the United rights 121 Ill. 2d Esposito nois Constitution. *6 the impending suspen notice of In with conjunction he or she has informed that sion, the must also be driver pursu on the suspension to request the right of the Rev. Stat. (Ill. 2—118.1 Code ant to section v. Gerke In 118.1). ch. par. 2— statutory court held that Ill. 2d this func administrative license is an of a driver’s suspension of State. tion of the Secretary summary suspen the statutory significant
It is of Secretary of the sion is an administrative function administrative this In compliance State. of mails a confirmation of State function, Secretary the motorist to date of the effective 951/2, par. Rev. Stat. (111. the court of venue. of State Secretary The form used 501.1(h).) 11 — entitled: of_ County in the Court
“Circuit SUMMARY OF STATUTORY CONFIRMATION SUSPENSION” it states: In pertinent part, 11—501.1 of Section the provisions
“Pursuant to A Code, THIS IS CONFIRMATION The Illinois Vehicle driving permit license or Illinois driver’s your vehicle, to or obtain a motor to drive your privilege Illinois, EFFEC- IS SUSPENDED license driver’s ON THE DATE SHOWN ABOVE. TIVE
* * * CAREFULLY IMPORTANT-READ You have JUDICIAL REVIEW: PETITION FOR Statutory Sum- judicial for review right writing filed in Petitions must mary Suspension. County Court of the the Clerk Circuit
submitted Statutory this front of Confirmation shown Summary Suspension. issue(s) you must state which listed below Summary to have using upon as which grounds
are hearing will be limited Suspension rescinded.
issue(s) specified petition. placed
a. were under arrest you lawfully Whether 501, or a provision violation of Section similar ordinance, relating un- driving local while alcohol, drug, der the influence other or combi- thereof; nation had arresting
b. Whether officer reasonable in ac- grounds you to believe that were or tual un- physical control of a motor vehicle while alcohol, der the influence of other or combi- drug, thereof; nation under you your rights
c. Whether were advised Code; Illinois 11—501.1 of Section Vehicle tests, d. refused the test or or whether you Whether *7 an alcohol you to test which indicated submitted 0.10 concentration of or more.” on the must occur on suspension is citation which was court date written on traffic of a re motorist, to the or within 30 written sued 1989, 95½, par. for a Rev. Stat. ch. quest hearing. (Ill. Rev. (Ill. is 118.1(b).) proceeding. This civil 2— 1989, 95½, 118.1(b).) ch. The criminal Stat. par. 2— of alcohol or under the influence driving while charge con 1989, 95½, 501) ch. is par. Rev. Stat. drugs (Ill. 11— criminal in a of a separate hearing. sidered dismissal in an rescission of the does result automatic not charge 258 (People Gerke Peo 85; 123 2d Ill.
suspension. ple v. Schuld It the tim 272.) App. suspension hearing civil which is at issue ing the consolidated cases before us. the Illinois for
Having scheme explained individuals are dealing charged who with while under the influence of alcohol or we now drugs, to the consolidated presented issue these proceed ap- peals. Puckett,
I. Defendant No. 3, 1990, that on The record establishes November (Puckett) defendant Jack E. Puckett was arrested of sec the influence of alcohol violation driving under 95½, ch. (Ill. tion 11—501 of the Code Rev. citation, He was issued a traffic 501(a)(2)). par. 11 — him to in court on November which directed appear the defendant officer also served arresting of his driving with notice of the summary suspension test. for his refusal to submit breathalyzer privileges 95½, ch. The sus 501.1(f).) Rev. Stat. (Ill. par. 11 — 19, 1990, to take effect on December was pension to the given 46th after notice suspension day par. Rev. Stat. (Ill. defendant. re A the defendant’s indicating sworn 501.1(g).) report sent to the Secre test was breathalyzer fusal take Rock Island the circuit of State tary Secretary receipt report, County. Upon State sent a confirmation court of Rock Island County, and the circuit
defendant as of De his license would be suspended indicating 19, 1990. cember Puckett filed a written
On December Island County the circuit court of Rock with the clerk of re- seeking for Judicial Review” entitled a “Petition driving privileges. of his scind the summary suspension
259 2-118.1(b).) The par. Ill. (See Rev. affidavit, which of service proof a contained petition mailed to the had been copy petition stated that a he filed same time that that date. At the on prosecutor a hearing; clerk, the Puckett requested the with petition set that time. The however, not at hearing a date was office would set Puckett that the clerk’s clerk informed out notice. the date send hearing however, a After hearing to set date. clerk, The failed had since he filed his petition, more 30 days passed than a held, no Puckett filed which during period the driv- immediately motion to rescind lack On timely hearing. January ing privileges 23, 1991, trial the defendant’s motion. the court denied to trial then the defendant’s motion granted court hearing, the Following reconsider on 1991. January the had not hear- given court held that defendant been from filing petition within 30 December ing therefore ordered rescission Puck- ett’s suspension. court of the trial judgment affirmed appellate 3d (221 granted
court. Ill. We State’s App. 594.) pe tition for Ill. 2d R. appeal (134 315). leave held third district appellate the summary mere of a rescind filing proper petition of said on the suspension, proper petition with service for a State, hearing. with the statutory request complies Therefore, period Ill. 3d the 30-day (221 App. 594.) commences with within which must be held The appellate the defendant. filing petition v. Johnson court followed its prior opinion In Johnson and case be App. low, it motorist filed a defendant undisputed with complied written rescind which on the served the requirements, properly However, State court rules. peti- compliance took no steps tioner in and defendant Puckett Johnson *9 filing petition. to matter for after the hearing set the it argument court the State’s that rejected The Johnson to secure a date hearing was the burden petitioner’s 202 Ill. (Johnson, of filing petition. within 30 days at court held: 811-12.) 3d Johnson App. filing requirements Petitioner met the initial
“[T]he fulfilled proceed his burden of section 2—118.1 and thus met, requirements those were ing petition. with the Once the State to ensure that a shifted to burden The State did not meet its days. date was set within 30 (Johnson, 811-12.) 3d at App. 202 Ill. burden.” it aware that stated that was court below appellate a different court reached of the appellate other districts The court stated: conclusion. relief, we would requested the State’s grant
“In order to to do Johnson. We decline to our decision have reverse *** make a petitioner that requires so. The statute hearing to the circuit judicial for a request written filing pe requirement by met this of venue. Petitioner clerk of the circuit with the judicial tition for review the State’s to sending copy court and at 597. App. 221 Ill. 3d Attorney’s office.” ex- did that petitioner The court then emphasized of the Secretary the Office he was instructed by as actly Sus- Summary of Statutory in its “Confirmation of State as follows: the petitioner advised which pension,” of the judicial for review right “You have must be filed Petitions Summary Suspension. Statutory of the Circuit to the Clerk writing and submitted this Confirma- front of shown on the County Court Summary Suspension.” Statutory tion of delay not cause any did since petitioner It concluded that filing 30 held within was not and a suspen required due process petition, must be re driving privileges the motorist’s sion of 594.) agree. Ill. 3d We scinded. (221 App.
261 this State judicial system recognize We 102 of this to serve the counties has circuits judicial to serve was enacted legislation State. Implied-consent of Civil Procedure. Its State, as does Code the entire the highways. who travel protect persons was purpose v. 395.) 2d (Koss Slater (1987), principal legislation protect concern in this trav enacting the constitutional protecting elers at the same time while charged motorists who rights may an substance. Once a intoxicating under influence of it is in issued, driver’s license considered a property clause of the terest under due protection process (Bell v. Burson and Illinois United States Constitutions. 1586; 29 L. 91 S. Ct. 402 U.S. Ed. Edgar ex rel. Eppinga 112 Ill. 2d 101.) suspen It is this reason that the statutory summary *10 notice sion 46 after of days suspension becomes effective 1989, 95½, is Rev. ch. given pars. 501.1(f), (Ill. 11— in order and the elaborate is codified to (g)), procedure notice an to be heard. This guarantee opportunity and the concern for of the protection satisfied substantive and of as procedural guar due motorists process rights anteed United States and Illinois Constitutions. by com- We conclude that 30-day statutory period mences on the date of the of filing proper petition venue, of with rescind circuit court service State, of court. in accordance with the rules this The shift burden to set date would then is in the to know court position State. State best officers, for the other schedules, court dates police of this leg- incident to an administration orderly matters islation. result in reasoning
We approve In Johnson 202 Ill. 3d 809. We also App. approve re Driver’s License Trainor Summary Suspension 918, 156 Ill. to the extent that it states: App.
“We hold that in order to with comply process due re in quirements, required section 2—118.1 must delay be held within the 30 unless occasioned so defendant, require failure to do will rescission suspension.” (Emphasis added.) (156 3d at App. 923.) court and
Accordingly, judgments appellate court, 72996, are affirmed. circuit No. Hill,
II. Defendant No. On March defendant Robert Michael Hill under the influence of al (Hill) driving was arrested cohol of section 11—501 of the Code (Ill. violation 1989, 95½, ch. He was is 501(a)(2)). Rev. Stat. par. 11 — citation, sued a traffic which directed him to appear 9, officer also arresting court on served April the defendant notice of the summary suspension for his refusal to a blood- his submit privileges 11— par. alcohol test. Rev. Stat. ch. (Ill. April was to take effect on 501.1(f).) suspension given after notice of was day suspension the 46th 95V2, to the Rev. Stat. (Ill. par. defendant. refusal to take indicating A sworn 501.1(g).) report test sent of State Secretary the blood-alcohol and the court of McLean County. Upon receipt circuit of State sent a confirmation Secretary report, that his li indicating to the defendant 18,1991. cense would as of suspended April 15, 1991, defense counsel filed a On March Friday, with the McLean circuit court County written *11 Summary Suspen clerk entitled “Petition to Rescind 1989, (See par. sion.” Ill. Rev. a requested In the the defendant 118.1(b).) petition, of his driv the summary suspension to contest hearing of service contained a proof ing privileges. petition of the had affidavit, petition which stated that a copy on that date. On to the prosecutor mailed been the the with filing petition after immediately same day, the carried clerk, counsel personally circuit court defense in order assigned judge the court file to chambers practice The custom and date. hearing obtain a assigned is for the judge’s court County McLean circuit motions and peti- hearings pending to set on secretary was nor secretary his tions. neither judge Since the secretary's the file on counsel left available, defense hearing note date. desk requesting 18, 1991, the March morning Monday, On the him to inform defense counsel judge’s phoned secretary 10, 1991, a date was set for April secretary 30-day judge’s within the statutory period. notice to the State give then directed defense counsel to counsel notified of the scheduled date. Defense hear- court for the of the date set prosecutor by to rescind. ing on defendant’s filed continu- 1, 1991, On the State a motion for April out of town on ance officer would be arresting since The State’s motion 10, the scheduled date of April for a con- 1991. The State asked heard April tinuance to 1991. Defense counsel April objected that a continuance the continuance on ground 30- in a hearing beyond would result April objection, period Despite statute. day required to April the motion and continued case granted filing following more than 30 days date petition. defendant’s re- 15, 1991, the filed a motion to On defendant April privileges scind the on his within for failure to hold a hearing on April motion was heard This 30-day period. 16,1991, and was denied. *12 court affirmed the of the appellate judgment trial
court. Ill. 3d (219 App. 259.) We allowed defendant’s petition (134 315). leave 2d R. appeal The fourth district of the court appellate adopted of the second district of the court in reasoning appellate People Grange (1989), v. 181 Ill. 3d 981. App. Grange court held that “the mere with the circuit filing court clerk of a does not petition requesting hearing start time in which a running 30-day period that, sufficient, such a re is to be held but be hearing for a must to the attention hearing brought quest Grange, the court so that a date can be set.” 181 Ill. 3d at 987. App. case, the facts of this Hill conclude that under
We to rescind the summary suspen- filed a proper petition of the cir- sion of his clerk driving privileges copy cuit court of venue and served State with addition, court rules. In accordance with with local court rules he acted accordance diligently, court custom, hearing. to set an date for a early the State requested He to a continuance objected the court that his was based objection and informed of a within 30 the statutory requirement overruled, his filing objection When petition. court to rescind asking he filed a motion timely The trial driving privileges. of his to rescind. court erred in denying court would have also note that the appellate We under of the trial court erred in affirming judgment Grange v. People 181 Ill. 3d App. the standard case, Hill because, complied the facts of this under However, case. we have of that requirements with the Johnson reasoning concluded Grange. Hill is preferable 202 Ill. App. also met this standard. court appellate the judgments
Accordingly, 72946, are reversed. court, in No. circuit Schaefer, No. 72884 Defendant III. background the factual recited
The appellate than Therefore, rather concisely. case clearly this prod- work anew, adopt we will this task undertake *13 court: uct of the appellate under the driving while for was arrested
“Defendant 3, 1989. on October (DUI) intoxicating liquor influence a registered test and breathalyzer to a He submitted arresting officer of .20. concentration blood-alcohol sus summary notice of immediate served defendant 1989, ch. Ill. Rev. driving privileges. of his pension 6-208.1,11-501.1. 951/2,pars. peti filed a attorney defendant’s
On October suspension summary statutory tion to rescind not, how The record does driving privileges. defendant’s establishing that this ever, a certificate of service include in accordance with the State had served on petition been 134 Ill. 2d Rules 11 and 12. Court Rules Supreme Illinois 11,12. filed counsel several defense
On October him, against proceedings and criminal motions in the civil summary for discovery order motion for civil including a criminal discovery a motion for hearing, suspension statutory to dismiss a motion prosecution, evidence suppress a motion to proceeding, criminal arrest, motion in limine and a quash to a accompanied by motions was Each of these prosecution. copy fact that a attesting to the of service certificate counsel. On opposing upon had served the motion been of mo- filed notices date, counsel also defense same motions, in addi- of these that each tion which indicated rescind, be called to would petition tion to the 31, 1989. at 9 a.m. on October appeared before parties
On October the record each recited for court, judge the trial trial before pending filed defendant of the motions defendant had filed a motion court. The court noted that dismiss, sum- discovery a motion for civil order and to in addition to a motion hearing, mary suspension limine, discovery, suppress a motion for and a motion not, in the criminal The court did how- prosecution. filed ever, in- petition prosecutor mention a to rescind. to rescind was before the court. quired whether did not judge responded The trial that she see file, the file in- to rescind in the court but stated that motion to dismiss which addressed itself cluded the summary suspen- sought civil remedies de- inquired prosecutor sion. Defense counsel whether to defend- response sired an to file a written opportunity indicated that she prosecutor ant’s motion to dismiss. The the motion response and stated that prepare wanted to not legal arguments which did upon to dismiss was based arresting testify. The court al- officer require response to time to file a written prosecutor lowed the dismiss, matter was motion and the civil defendant’s 16,1989. to November continued entered, prosecutor When the continuance for the record that she wanted it clear specifically stated the courtroom and excused from the officer was *14 that time. to rescind on file at petition that there was no and did made no comments whatsoever Defense counsel a indicating pe- that by to correct the record attempt not 5, 1989. filed on October tition for rescission had been dis- motion for civil granted then defendant’s The court until the cause was continued repeated and that covery, had also 16, counsel Although 1989. defense November 31, for 9 a.m. on October other motions up noticed five motions, of these argue any to attempted he never rulings on that the court enter request he not and did them. on No- the court appeared
The next before parties to motion 14, 1989, to defense counsel’s pursuant vember to defendant was argument case for because advance the date of No- scheduled previously out of town on the be of motion notice Although defendant’s vember sus- to advance the indicated that he intended 16 to November hearing from November pension court, the defense appeared before parties when the the to rescind to petition not present counsel did hearing ruling or thereon. a requested never court and stated prosecutor that argument, any Prior to file, trial petition no to rescind on there still was that then stated court Defense counsel agreed. argu- After precedence.’ to strike ‘takes
State’s motion strike, on the State’s motion to by parties ment both to motion dismiss be trial court ordered that defendant’s stricken. that there again
The noted on the record prosecutor agreed file. court was no to on The petition rescind to rescind petition defense counsel whether a inquired of counsel would filed in future. Defense stated be to responding any questions; you not at all merely, ‘I’m stated that prosecutor have heard our motion.’ testify to had scheduled officers who would be called been appear November 1989. Because the defendant on date, was to out of town that the cause contin- on 4, 1989, agreed ued to and defense counsel December at that his client would be that time. present 4, 1989, On and defendant prosecutor December The pros- defense failed to appeared, appear. but counsel to re- petition ecutor noted the record that no again filed, trial scind and the court continued had been 3,1990. January cause to trial next before a different parties appeared mo- to defendant’s
judge pursuant on December the fact that defendant was upon tion dismiss based on his for rescission not afforded The State required opposed within as statute. dismiss, rescind noting the motion to file was rather photocopy appeared file original stamp. than not an original an did bear did not de- prosecutor also stated that defendant 31, 1989, the first time the mand a on October Finally, argued prosecutor case was court. before noted on called it had been that each time case was *15 had been filed. petition no for rescission the record that Defense that ‘it not as responded duty counsel [was] [his] lawyer opponent to either in or assist their case [his] prosecuting the in assist court client.’ [his] Although judge the trial stated that he was bothered by attorney the conduct of defendant’s and did not be- that court proper practice, lieve such conduct was the suspen- found that the to rescind the petition 5, Accordingly, sion had been filed on October defendant’s motion to dismiss was sustained. the court appealed, contending State that trial rescinding in summary suspension
erred the of defend af driving privileges ant’s because defendant was not petition forded a to rescind within 219 Ill. 3d 655-57. days.” App. the the trial court reversed appellate judgment Ill. 3d (219 654.) granted
court. We defendant’s App. 315). Ill. 2d R. petition appeal (134 leave fact to rescind the sum petition that Accepting filed was mary suspension privileges peti defendant on we conclude that October tion it did not include a certifi was insufficient because that had been establishing petition cate of service Court Supreme on the State accordance with served 11, 12). 11 and 12 2d Rules (134 Rules Hill, undisputed In the of Puckett it was cases in accordance was served on the State petition reasoning with court rules. Based on the Johnson have decided in 202 Ill. we App. its de reaching and Hill. In favor of defendants Puckett in Johnson cision, noted specifically not and that dispute was sufficiency petition Attor had the State’s sent been copy Johnson, 202 Ill. 3d at 811. App. office. ney’s a cer- bar, record does not contain In the case at very existence of service of petition. tificate throughout protracted pro- in doubt Orbach Judge before until a surfaced ceedings photocopy *16 269 that more decided Judge Orbach on December 5, 1989, fil- from the October had elapsed than service) a certificate (without ing petition reluctantly granted so he December the summary suspension motion to dismiss defendant’s of his driving privileges. Orbach, who
However, Judge before proceedings 11, 1989, provide this case on December first heard In to defendant’s mo- some significant insights. response Orbach Judge tion to dismiss the summary suspension, stated: counsel was af- from what was read that appears
“[I]t to make his demand on the sum- opportunity forded the mary separate on two occasions.
* * * from I have heard is that strange part what when the Court said there is no on file there was petition oh, no from it was and response you saying, yes, such as I demanding it was filed on the date certain. And am trial. You could have invoked Trainor on 14th. November there is no saying And all that we have is a court The State’s there is no Attorney saying peti- file. [is] ***. There still you tion on file. And stood moot was [sic] here file. And question as to whether was on to that you responded question.” never asserted, asked me Defense counsel “The court never nor me to answer it.” Or- Judge ordered question bach responded: Counsel, you me. That say,
“Let me that that bothers here was—where the court would stand and that there major component missing of the file is say would you there know for a you say nothing stand when court file. missing. present fact that it is not It is court makes note of it The State makes note of it and the and you saying nothing. stand there Yes, you I me? I can tell you
Can tell that bothers that bothers me.” then “I stated,
Defense counsel respect your Honor’s but it is not as a to either assist opinion my duty lawyer in their case or assist my opponent prosecut- client.” ing my correct, instincts were his deci-
Judge Orbach’s but sion was court’s wrong. appellate reversal corrected this error. the petition (which
Even if defendant had served he Therefore, not), did his conduct was a cause delay. the Johnson or it would not have mattered whether Grange peti- standard because defendant’s applied *17 ab initio tion was insufficient conduct contrib- uted to delay.
Accordingly, judgment appellate court, in 72884, No. affirmed. is
IV. Conclusion is af- court’s No. 72884 judgment appellate firmed. The and circuit courts’ appellate judgments cause is remanded No. 72946 are reversed and the in No. circuit court’s appellate judgment court. affirmed. is 72996 Judgment
No. 72884— affirmed. reversed; Judgments No. 72946— remanded. cause No. Judgment affirmed. 72996— MILLER, concurring: specially CHIEF JUSTICE ap- I judgments present concur court’s however, sug- I the majority’s do not with agree, peals. constitu- are dictated holdings by that gestion today’s I write concerns, separately. and for that reason tional is appeals in these consolidated common question construction, not resolved as one properly our task in Accordingly, interpretation. constitutional
271 legisla effect give is to ascertain and regard this Park District v. Joliet (1990), (Croissant intent. ture’s begins That 449, 455.) inquiry appropriately 141 Ill. 2d v. Dare (People (1988), with the statute. language of the Illinois 441, 447.) 118.1(b) 119 Ill. Section that the rescission is be Vehicle Code provides of the written 30 after receipt conducted “[w]ithin 1989, for a Rev. Stat. hearing (Ill. request” addi impose The statute does not 118.1(b)). any par. 2— driver, on a and I with the agree majority tional duty begins the time the statute period provided by serves a writ run when the driver submits properly ten for a in accordance with our rules hearing, request service. regarding however,
I further agree, do not majority’s statement within failure to conduct every the time allowed section 2—118.1 must deemed un constitutional, in a of due resulting process. (154 denial 253, It li Ill. 2d at true that a driver’s 261.) certainly cense is a interest and that the due protectible property (Bell clause its or revocation. process governs v. Burson 402 U.S. 29 L. Ed. 2d 91 S. 1586.) however, Ct. Due does not re process, invariably the State seeks quire predeprivation hearing whenever (Mackey Mon to restrict person’s privileges trym U.S. 61 L. Ed. 2d S. Ct. *18 Dixon v. Love 2612; L. 431 U.S. Ed. 2d (1977), found that 1723), 97 S. Ct. and we have previously under the sum hearing is not presuspension required v. (People Gerke here involved mary suspension provision 123 Ill. 2d Because the 91). summary suspen sion of a driver’s license is not effective until the 46th notice of that after the driver receives the day necessary 501.1(g)), action Rev. Stat. (Ill. par. section 2—118.1 occur ei may hearing provided by effect, ther or after the will take de- before request. is in making how the driver prompt pending v. ople Esposito 491, 507.) 121 Ill. 2d (Pe drivers Thus, greater pro afford 118.1(b) may section 2— and failure than is constitutionally required, tection time limit set forth within the conduct due in a denial of would not result necessarily provision process. stated, I in the court’s judg- reasons concur
For the appeals. ments the present
(No. 68274. ILLINOIS, Appel- THE STATE OF THE OF PEOPLE WARD, lee, Appellant. JERRY 19, 1992.Rehearing November Opinion filed 29, 1993. denied March