*1 original valuation accept must is, it position That in a where property. appeal its right to file own statutory had a The school district the PTAB would do not know what It not do so. We the valuation. did argument filed. The school district’s appeal been have done had committed PTAB would have essentially: appeal, Had filed we appeal. acknowledge our by failing error reversible grant It not error appeal. not file an The school district did ap- appeal, own sole voluntarily dismiss its Aux motion Sable’s peal pending. I affirm. occurred. would cannot for error never
We reverse ILLINOIS, Plaintiff-Appellant, v. JAMES THE PEOPLE OF THE STATE OF ZIOBRO, Defendant-Appellee.—THE OF THE STATE OF PEOPLE LEMOINE, ILLINOIS, Plaintiff-Appellant, v. MICHAEL Defendant- ILLINOIS, Appellee.—THE OF Plaintiff- PEOPLE OF THE STATE SHANAHAN, Defendant-Appellee.—THE Appellant, ROBERT PEOPLE ILLINOIS, Plaintiff-Appellant, OF THE v. TODD STATE OF WAMBSGANSS,Defendant-Appellee. 3—09—0071, 3—08—0770,3—08—0771,3—08—0793,
Third District Nos. 3—09—0072cons. Rehearing denied January Opinion February filed *2 Attorney, (Terry Glasgow, James State’s of Mertel and Thomas Joliet A. (argued), Attorneys Office, Appellate D. Arado both of of State’s Prosecutor’s counsel), People. for Brumund, Jacobs, (argued), Vahey, of
Ted E Hammel and Sarah M. both Hammel, Davidson, LLC, Joliet, Cummings, & E. of Andreano Kevin Lenox, Cummings, appellees. Office of Kevin E. New Law opinion JUSTICE delivered the the court: LYTTON Ziobro, Michael Lemoine Wambsganss, Defendants Todd James driving were citations under and Robert Shanahan issued influence and other traffic The first violations.1 dates beyond prescribed period listed on their citations set forth in were (166 Supreme Court Rule 504 Ill. 2d R. At their appear ances, filed defendants motions to dismiss. The trial court charges against motions and dismissed the prejudice. defendants with part We affirm in in part. reverse
WAMBSGANSS September On Wambsganss Todd was issued citations (625 5/11—501(a)(2) 2006)) for driving under the influence ILCS (625 5/11—601(b) (West 2006)). and speeding ILCS appear The first ance date on his citations was November 2008. On November 2008, Wambsganss’ attorney filed appearance, his a demand for speedy trial and a trial demand. The clerk of the court did not Wambsganss with a new or trial date.2
On November Wambsganss and attorney appeared court. Wambsganss entered a plea of not and announced that he “ready was prosecutor for trial.” The responded: “I pass would ask to the matter so I can get my witness recalled, here.” When the case was the prosecutor asked for more time to find his witness. When the case again, recalled the prosecutor explained: “Judge, this is a develop- ing got call, situation. We just missed so let me see what the trooper has to say.” stated, The court judge available, “We have a you know.” *3 The prosecutor responded: “I’m not announcing ready for trial at this point.”
Wambsganss then announced his intention to file a motion to pursuant dismiss Supreme Court Rule 504. passed The court case one more time to the allow State additional time to obtain its wit- ness. When the recalled, case prosecutor was stated: “I cannot an- nounce ready.” The court set a hearing date for defendant’s motion to dismiss.
On 18, 2008, December the trial court held a hearing on defen- dant’s motion to hearing, dismiss. At the the State did not provide an explanation why for the officer did not Wambganss’ set date within the time constraints of Rule 504. After hearing argu- ments, the court ruled as follows:
1Defendants’ cases purposes have been appeal. consolidated for of this policy 2It seems County to be the request Will that when defendants jury trial, they provided are not policy with a trial date. appears This to be in (166 contravention of Court Rule 505 Ill. 2d R. Under Rule required the clerk is to set a trial date if the “notif[ies] clerk of the court at (excluding Saturdays, Sundays least 10 holidays) before the date appearance” [his] set for first plead that he intends to jury or demand a trial. 166 Ill. 2d R. 505. language provides Rule 504 that
“[O]bviously plain of period of prescribed of the setting a first date outside only upon evidence of the days, excusable is over 60 which prescribed period. setting the date within impracticability setting that any impracticality evidence of I heard no neces- I think that it’s period. So case law prescribed within the I, of this case. sary that I order the dismissal *** grant your I motion.” clarify motion to later, the State filed a two weeks Approximately State, 18, 2008, According to order. the court’s December was with or not the dismissal order “not clear whether original was an order 7, 2009, the trial court entered January or not.” On prejudice prejudice.” is with clarifying that “the dismissal ZIOBRO driving citations 6, 2008, Ziobro was issued James On June (a)(2) (West (625 2006)), 5/11—501(a)(1), ILCS the influence under 5/11—601(a) (625 ILCS accident to avoid an speed failure to reduce (625 ILCS uninsured vehicle 2006)), and an operating 5/3—707 (West 2006)). August citations was date on the The first appearance, filed his attorney July Ziobro’s 2008. On court did not The clerk of the trial demand. speedy demand and a hearing or trial Ziobro with new an- in court and attorney appeared 7, Ziobro and his August On “Judge, it’s not been responded: for trial.” The State “ready nounced to notice I’m entitled on this. trial, position I can’t take a so set get my wit- opportunity get been set to a trial date has a mo- filing he the court that was then advised here.” Ziobro nesses 504. The trial Court Rule pursuant to dismiss tion hearing. Ziobro’s motion for set that it argue did not motion, the State on Ziobro’s
At the In days. date within to set the impracticable was motion, the trial court stated: ruling on days, it was not within find that the “I will impractical that it was is no evidence I find there days, violated Section 504 was Court, I find that to the so presented [as] by the defendant.” to dismiss therefore, grant I the motion and, will prejudice. was with dismissal The trial court’s *4 LEMOINE resident, was is- Lemoine, a Louisiana 26, 2008, Michael April On (625 ILCS the influence driving under 5/11— citations sued (625 2006)) (West ILCS 501(a)(2) usage lane improper 5/11—709 was his citations 2006)). listed on (West date appearance The 11, 2008, June 2008. On June attorney Lemoine’s filed his appear- ance, trial demand speedy and a trial demand. The clerk of the court did not provide Lemoine with a appearance new 26,
On June attorney Lemoine and his appeared in court announced, ready are “we for trial.” The State did not announce ready for trial but informed the court the case should be transferred to another judge in another courtroom. In front of the judge, new Lemoine plea entered his not and asked leave to dismiss, file a motion to arguing setting that the his date did not comply Court Rule 504.
At the hearing on the dismiss, motion to the arresting officer testi- fied that citations, when he issued Lemoine’s he thought that the ap- pearance date fell within the period required by Supreme Court Rule 504. The granted trial court Lemoine’s motion to dismiss with prejudice. The State filed a reconsider, motion to which the trial court denied.
SHANAHAN On May Robert Shanahan issued for driving citations (625 5/11—501(a)(2) (West under the influence ILCS 2006)), illegal (625 screeching of (625 tires 2006)), ILCS speeding 5/11—505 5/11—601(b) (West 2006)) ILCS (625 and failure to wear a seat belt (West 2006)). ILCS 5/12—603 date listed on his July 10, citations was May 15, 2008, 2008. On attorney Shanahan’s filed his and speedy trial demand. The clerk of the court did provide Shanahan with a new or trial date.
On July 10, Shanahan and attorney appeared in court and sought leave to file a motion to pursuant dismiss to Supreme Court Rule 504. At motion, the State presented no evidence regarding the impracticability setting within 60 days of Shanahan’s arrest. The trial Shanah- an’s motion and dismissed the charges against him with prejudice. The State filed a motion to reconsider. The trial court denied the mo- tion, stating, “They’ve got Court Rule for a reason.”
ANALYSIS Supreme Court Rules 504 and 505 a schedule for the State to try charged defendants with traffic People offenses. See White, 273 App. 638, 639-40,
504 states:
“The arresting date set officer or the clerk of the circuit court for an accused’s first appearance in court shall be not less than 14 days but arrest, within 60 after the date of the practicable. whenever policy that, It is the of this court if the ar *5 836 agency
resting exempted requirements has been from the of Rule 505, pleads guilty’ alleged and to an appears an accused who ‘not only punishable by or fine should be traffic conservation offense or, granted a trial on on the date if ac appearance the merits the by jury, a a time cused demands trial within reasonable thereafter.” Ill. 2d R. 504. pertinent Rule in provides part: issuing a Complaint, a Uniform Citation and conserva-
“When either, Appear or the complaint tion a Notice to in lieu of officer substantially also issue a notice to the in the shall written accused following form:
AVOID MULTIPLE COURT APPEARANCES guilty’ if, you charge,
If ‘not this or in ad- plead intend to to dition, jury, a you by notify to demand trial so the intend (excluding Saturdays, days clerk of the court at least 10 your appearance. Sundays holidays) day or before the set set, arrangements appearance A new date will be and will be arresting present to have officer on that made the new your plead intention notify Failure to the clerk of either to may jury guilty’ your ‘not intention demand a result court, ‘not your having you plead guilty’ in return to if originally your appearance. date set for the timely receipt plead that the intends to ‘not Upon of notice accused clerk a new date not less than 7 guilty,’ the shall set original appearance more after the date set days nor than 60 court, notify arresting or the clerk of the circuit by the officer If appearance. and the time the ac parties all new date jury, a within a by cused demands shall be scheduled *** notify the period. If the accused fails to clerk as reasonable above, appear on date arresting officer’s failure to provided good a may be cause for originally set for considered 166 Ill. 2d R. 505. continuance.” “to purpose of Rules 504 and 505 is express
The
early hearing
on the merits of his traffic offense
defendant with
eliminates undue
appearances,
which
to avoid
accused,
agencies and
courts.”
law enforcement
hardship
(1994).
824,
Williams,
62, 68, The
158 Ill. 2d
N.E.2d
People v.
defendants, who
for the convenience of traffic
rules are “intended
efficiency of law
for the convenience and
away,
often live a distance
intended to
freshness
agencies;
preserve
are
enforcement
place.”
on the merits takes
memory
evidence and
when
(1980).
443,
271-72,
Mears,
265,
405 N.E.2d
People v.
in
Rule 504 or
that “nowhere
either
court has stated
supreme
ap
on the first
absolutely guaranteed
on the merits
Rule 505 is a trial
205,
Norris,
date.”
214 Ill. 2d
824 N.E.2d
pearance
People ***
to ac
“can, cases be used
the rules
some
appearance date.” Nor
a trial on that first
granting
commodate
ris,
Pursuant to Rule defendant should (i) if he with an offense charged punish his first is (ii) Rule only, exempt fine from arresting agency able Norris, ad at 210. Rule 505 does not which provides procedure by dates but dress defendants can schedule “alternative first dates.” complies 211. When a 505, by timely plead his notice of filing intent and/or trial, to demand a he is entitled to a on the merits disposition *6 611, (People Baie, App. 605, “the initial court v. Ill. 755 date” 3d (2001)) 1038, Rumler, (People N.E.2d or his “new trial date” v. (1987)). App. 244, 246, Norris, 161 Ill. 3d 797, N.E.2d See also (a 101, may 214 Ill. 2d at at 211 subjected N.E.2d defendant to appearances procedure if he does not follow the forth in set Rule
Rules 504 and judge complete 505 “allow for the trial to have discretion over what should occur in a particular case.” 214 Ill. 103, 824 arresting 2d at N.E.2d at 212. If the ap officer sets a first pearance period rule, the provided by outside the the court trial required Walter, is not to the charge. dismiss v. 335 Ill. 3d People App. (2002). 1151, 779 N.E.2d “If 1152-53 the trial court determines that impracticable it not set the was to date within the limitation, time charges rule’s the court’s not be dismissal will Walter, disturbed on review absent abuse of discretion.” 335 Ill. 174, App. at 3d 779 N.E.2d
A trial court’s discretion is not without limit. When defendant is not entitled to a trial on the merits at his he because has met requirements 505, not the 504 or either Rule may court not the charges against dismiss the with Love, prejudice. 196, See People 199-204, 393 Ill. App.
1015, 1018-22
to a
Additionally, when a defendant is entitled
trial,”
on
“ready
the merits
does not
but
answer
for
charges against
dismissal
not a
the
disposition
defendant is
Rumler,
merits that bars further
3d at
prosecution.
App.
See
246,
514 N.E.2d at
entitled to a
when a defendant is
trial,”
“ready
merits and announces
the trial court
charges against
must dismiss the
defendant if the State fails to proceed
Rumler,
to
See
App.
trial.
3d at
Wambsganss, Ziobro Lemoine Wambsganss days filed his the first jury demand before date, At court appearance date listed on his citation. his first Wambs- “ready for ganss appeared responded and announced trial.” State by asking additional time to obtain witness. After the court its that a avail- judge recalled case several times announced able, conceded, ready time.” prosecutor “I cannot announce at this Wambsganss filed a The trial then motion dismiss. charges against
the motion and dismissed the defendant with prejudice.
Ziobro and Lemoine their trial demands 11 before filed their At the first dates listed on citations. their first dates, “ready Ziobro Lemoine and announced for trial.” appeared the State refused to the defendants filed motions proceed, When dismiss, against dismissing charges which the trial court granted, prejudice. them with *7 days ap least before their first
By filing jury trial demands at 10 strictly complied Wambsganss, Ziobro Lemoine pearances, give 505. The clerk did not them a trial Supreme Court Rule Supreme Court Rule pursuant to their dates to prior first result, Wambsganss, appeared and Lemoine in court As a Ziobro 505. fol on their traffic Because defendants on the dates listed citations. 505, they entitled requirements of Court Rule were lowed the disposition a and have multiple appearances” to “avoid 505; Baie, 324 Ill. “initial 166 Ill. 2d R. merits on their court date.” 611, 3d at N.E.2d at 1043. App. disposition have a
Wambsganss, Ziobro and Lemoine did not to the State failed merits dates because on their date and at first appeared Each defendant prosecute. proceed trial”; required then “ready for the State was announced 246, 514 at 798. Rumler, 161 3d at N.E.2d App. See Ill. to trial. place. no trial took proceed The State’s failure to constituted prosecute. Rumler, failure to 246, See 161 Ill. 3d at App. 514 N.E.2d A prosecute 798. failure to disposition is a on the merits that bars further proceedings. Rumler, 246, 3d at 514 N.E.2d at Thus, 798. the trial court did not err in dismissing with prejudice the charges against Wambsganss, Ziobro and Lemoine. argues State requires that Love a different result here.
However, the
in
facts
this case are distinguishable from those in Love.
Unlike
Love,
in
who filed her jury
just
trial demand
days prior to her
appearance date,
Wambsganss, Ziobro and Lem
oine
jury
filed their
days
demands
or more
before their first
appearance dates,
required by
as
Thus,
Court
Rule 505.
were entitled to “avoid multiple court appearances” and
have
on the merits on
their first
505;
dates. See 166 Ill. 2d R.
Baie,
612,
324 Ill. App. 3d at
Love,
Additionally, Love, the defendant failed to establish that State’s actions constituted a prosecute. failure to Although Love argued that ready she was for trial and that the State failed proceed, we found that when Love filed a motion to dismiss with her demand, the request State’s on the motion to dismiss prior to trial did not constitute a proceed. Love, failure to See 202-03, 3d at 911 N.E.2d at In case, this Wambsgannss, Ziobro and appeared Lemoine in court on their dates and announced “ready for trial.” When State would not or could not proceed trial, the defendants filed their motions to dismiss. Thus, the trial court properly charges against dismissed the Wambs ganss, Ziobro and Lemoine based on the State’s failure to prosecute. See 161 App. 246, N.E.2d ‘ “[Sjupreme court rules aspirational. “are not They sug are not gestions. They have the law, force of and the presumption must be ’ ” that they obeyed will be and enforced as written.” Rodriguez v. Comm’n, Merit 218 Ill. 2d 379, 843 N.E.2d Sheriff’s (2006), quoting Roth v. Co., Illinois Farmers 490, Insurance 202 Ill. 2d (2002), quoting Dicke, Bright v. 166 Ill. 2d 204, 210, 652 277-78 expressly states that a first appearance must place take between 14 and 60 after a citation is issued. 166 Ill. 2d R. 504. Rule 505 prescribes procedure that a defendant must follow to “avoid ap pearances.” 2d R. 505. give any meaning To to the time limits set forth in Rule 504 and the instructions contained in Rule *8 504’s time authority
trial
must have
to dismiss a case when Rule
are
complies
limits
not followed and the defendant
with
and
Court Rule 505. To hold otherwise would he to render Rules 504
do.
This we refuse to
meaningless.
Moreover,
and 505
promotes
policy
our decision
of Rules 504
(1)
(2)
early
merits,
al
hearing
to
defendants with an
on
(3)
multiple
appearances,
preserve
low defendants to avoid
Williams,
Ill. 2d at
the freshness of evidence. See
827; Mears,
App.
Requiring
at
84 Ill.
3d at
Shanahan file not guilty plea prior Shanahan did not demand at “ready his first He did not announce for trial” to Rather, he his first appearance. appeared his first to motion to The immediately sought permission file a dismiss. charges motion trial court Shanahan’s and dismissed the against prejudice. him with under
Shanahan was not entitled to a
on his first
First,
for two
he did not file a notice
Rule 504 or 505
reasons.
appearance,
his
plead
to
not
at least
before
intent
Second,
Rule 504
required
See 166
2d R. 505.
as
under
only”
See
dates for “fine
offenses.
hearings
allows
on first
DUI,
charged with
which
Ill. 2d
504. Because Shanahan was
R.
Love,
See
only,
apply.
fine
Rule 504 does not
punishable
not
rule,
had
at
1020. Under either
Shanahan
911 N.E.2d at
App.
court had
appearance,
to
right
no
See
against him with
charges
prejudice.
dismiss the
authority
no
202-03,
Love,
3d at
Moreover, did not constitute a the State’s actions trial; ready he was never announced that Shanahan prosecute. Thus, did instead, he filed a motion to dismiss. State simply disposition was not prosecute, and the trial court’s dismissal fail Love, See prosecution. barred further on the merits that 202-03, 1021; N.E.2d at order reasons, the trial court’s we reverse For these against prejudice. dismissing charges Shanahan
CONCLUSION affirmed in County part of the circuit court of Will are orders in part. and reversed *9 part. in in part
Affirmed reversed O’BRIEN, J., concurs. SCHMIDT, in part dissenting part: in concurring
JUSTICE
I. Shannahan I in judgment only portion majority concur the of that of the opinion prejudice which reverses the trial court’s dismissal of the with charge against DUI Shannahan. Wambsganss,
II. Ziobro and Lemoine respect only” With to the I offenses, defendants’ “fine concede judge that the trial charges did have the discretion the to dismiss with prejudice. Further, agree I with majority County the that the Will clerk following guidelines was not the of Rule 2d Ill. R. 505. Once the defendants notified the clerk that plead intended to not date, within 10 of appearance their initial the clerk should have a scheduled a period” “within reasonable in accordance with the rule. 166 Ill. 2d R. 505. DUI charges, the misde minimum, meanors at should not have prejudice been dismissed with because the defendants were not entitled a on trial on the merits the appearance first date.
I
majority’s
believe the
opinion flies in the face of
Illinois
the
(2005).
Norris,
Court’s decision in
People
The v. Rumler majority relies I opinion. its 161 Ill. would submit the us. At the longer good applied Rumler is no law as issue before (166 504) written, for a time Rule 504 R. allowed Rumler then, date in all traffic Since trial on the first cases. apply only only” 504 has been rewritten to to “fine offenses. 166 2d R. 504. states, is entitled a trial on the majority “when defendant trial,’ ‘ready and announces the trial court must dismiss
merits if proceed fails to to trial.” charges against State 837; Rumler, wrong 246. This is App. 3d above, supreme court made it clear on several fronts. As stated that defendants were not entitled to the first Moreover, goes step majority 214 Ill. 2d at date. See mandatory. is This prejudice further and holds that dismissal with of the rules and contradicts holding unsupported language Norris.
Furthermore, supreme cites to the court for majority *10 are not and that supreme aspirational court rules proposition Ill. 3d at 839. they obeyed and as written. 397 are enforced 504 and 505 are court made it clear that Rules the Norris stated, it rules applied differently supreme than the other court when the mere this being ‘policy’ is in Rules 504 and 505 is “what set at 103. command.” 214 2d court and not inexorable So, why prejudice? charges are these dismissed with Ill. Const. jeopardy no of the clause. See There was violation double jeopardy protects I, prohibition against §10. double art. “(1) the same prosecution a for against three different abuses: second (2) same offense acquittal; prosecution a second for the offense after (3) conviction; offense.” same punishments after and 1, 4, 770 Sienkiewicz, v. 2d People People empaneled is and sworn. attaches when the Jeopardy (2003). Here, 274, 284 Henry, 204 2d Supreme Court Rule based on defendants’ cases were dismissed Jeopardy had not attached. Ill. R. right statutory defendants’ no violation of the There was the court heard demanded trial and trial. Each defendant speedy days The Illinois Code more than 45 later. to dismiss no motion states: Criminal Procedure
“(a) alleged custody in for an offense Every in this State person days from jurisdiction having within by tried the court shall be custody ***. into he taken the date was (b) person recognizance be tried Every bail shall having jurisdiction days within 160 from the date defendant (b) (West 5/103—5(a), ILCS demands trial ***.” 725 Wambsganss’ days motion to was heard after he demanded dismiss days trial. Ziobro’s motion was heard 30 after he demanded trial. So, why Lemoine’s motion was heard 29 after he demanded trial. prejudice? majority, relying are these cases dismissed with Because the Rumler, holds that the failure to defendants a trial on their give “a prosecute.” constituted failure relying majority 839. While appellate ignores supreme court in Norris. alleged poses
Defendants’ in these behavior cases serious risk to public safety and lightly. should be treated It makes no al- sense to prejudice low dismissal with charges of these serious because simply driving involve A charged a car. shoplifting with Snickers bar from local and “five dime” would be no afforded such pass. free up Run that one flagpole at the next meeting. town hall Demanding strict compliance with Rules 505 makes sense dealing when petty with offenses. It no dealing makes sense when with serious misdemeanors. The legislature’s decreasing tolerance impaired drivers reflected in lowering legal laws limit for a (Pub. (amend- driver’s blood-alcohol 90—43, level Act eff. July ing 1996))), 625 ILCS increasing penalties for 5/1—203.1 (Pub. repeat 92—248, offenders Act August eff. (amending (West 2000))). ILCS Allowing prejudice for a dismissal with 5/6—208.1 in these seriously cases would public policy undermine this crucial defeat legislative efforts to our keep Dismissing roads safe. these cases prejudice was an abuse trial court’s discretion. For the foregoing reasons, I respectfully dissent.