People v. Allen

• Decision Date: 27 August 1991
• Docket Number: No. 5-90-0203,5-90-0203
• Citation: People v. Allen, 577 N.E.2d 913, 217 Ill.App.3d 740, 160 Ill.Dec. 588 (Ill. App. 1991)
• Parties: , 160 Ill.Dec. 588 The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Gregory S. ALLEN, Defendant-Appellee.
• Court: Appellate Court of Illinois

Page 913

577 N.E.2d 913

217 Ill.App.3d 740, 160 Ill.Dec. 588

The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Gregory S. ALLEN, Defendant-Appellee.

No. 5-90-0203.

Appellate Court of Illinois Fifth District.

Aug. 27, 1991.

Paula Phillips, State's Atty., Effingham, Kenneth R. Boyle, Director, Stephen E. Norris, Deputy Director, Gerry R. Arnold, Staff Atty., Office of the State's Attys., Appellate Prosecutor, Mt. Vernon, for plaintiff-appellant.

Justice HARRISON delivered the opinion of the court:

The State appeals pursuant to Supreme Court Rule 301 (134 Ill.2d R.301) from final judgment of the circuit court of Effingham County granting defendant Gregory S. Allen's petition to rescind the statutory summary suspension of his driver's license. Defendant has not filed a brief with this court. We proceed to address the merits of the State's appeal. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill.2d 128, 345 N.E.2d 493; Haeflinger v. City of Wood Dale (1984), 129 Ill.App.3d 674, 84 Ill.Dec. 832, 472 N.E.2d 1228.

On December 25, 1989, defendant was arrested and charged by a uniform traffic ticket with driving under the influence of alcohol (DUI) (Ill.Rev.Stat.1989, ch. 95 1/2, par. 11-501). Defendant received a statutory summary suspension pursuant to section 11-501.1 of the Illinois Vehicle Code (the Code) (Ill.Rev.Stat. 1989, ch. 95 1/2, par. 11-501.1) for failure to submit to chemical tests at the request of the arresting officer. Confirmation of that suspension was filed on January 5, 1990, and the suspension was to become effective on February 9, 1990, the 46th day following the arrest. Ill.Rev.Stat.1989, ch. 95 1/2, par. 11-501.1(g).

On January 16, 1990, defendant filed a petition to rescind the statutory summary suspension and a hearing on the petition was scheduled for February 15, 1990. The State's Attorney filed a motion on January 17, 1990, requesting substitution of judge for the assigned judge, the Honorable Richard H. Brummer, pursuant to section 114-5(c) of the Code of Criminal Procedure of 1963 (Ill.Rev.Stat.1989, ch. 38, par. 114-5(c)). Thereafter, on February 8, 1990, the chief judge assigned the Honorable E.C. Eberspacher as the trial judge in the case. On that date, Judge Eberspacher entered an order on his own motion removing the Effingham County State's Attorney and her office from the prosecution of the case and requiring that she surrender her files to the sheriff.

On February 15, 1990, the date originally set for the hearing on defendant's motion to rescind the suspension, defendant appeared before the daily call judge, the Honorable Steven P. Seymour, and announced his readiness to proceed with the hearing. Judge Seymour stated that he had no authority to hear the petition to rescind because the case had been assigned to Judge Eberspacher. Although an assistant State's Attorney was present in the courtroom, Judge Seymour noted that due to Judge Eberspacher's order removing the State's Attorney's office from the case, no one appeared on behalf of the State.

On February 20, 1990, Judge Eberspacher entered an order reinstating the State's Attorney as the prosecuting authority and reinstating Judge Brummer as the trial judge in defendant's case. Later that day, defendant and an assistant State's Attorney appeared before Judge Seymour and the State's motion for continuance was granted because the prosecutor had not had control of the State's file and had had no opportunity to subpoena witnesses.

On March 1, 1990, the parties appeared for the hearing on defendant's petition to rescind the suspension and defendant filed a second motion to rescind based on a failure to hold a rescission hearing within 30 days of defendant's January 16, 1990, request, as required under section 2-118.1 of the Code (Ill.Rev.Stat.1989, ch. 95 1/2, par. 2-118.1). The State argued that, due to Judge Eberspacher's order, the State had no control over the failure to hold a timely hearing and should not be held accountable for its absence. Further, the State contended that the mandatory time requirement of section 2-118.1 was not intended to apply when circumstances beyond the State's control precluded it from proceeding.

Judge Seymour agreed that the failure to hold the hearing within the time limits of the statute was not the result of a lack of diligence either by the State or by defendant. However, the court stated that based on In re Trainor (1987), 156 Ill.App.3d 918, 109 Ill.Dec. 746, 510 N.E.2d 614, it was compelled to grant defendant's motion to rescind the statutory summary suspension.

We agree with the trial court that In re Trainor is dispositive of the instant case. Section 2-118.1(b) of the Code provides in relevant part as follows:

"Upon the notice of statutory summary suspension served under Section 11-501.1, the person may make a written request for a judicial hearing in the circuit court of venue. * * * Within 30 days after receipt of the written request or the first appearance date on the Uniform Traffic Ticket issued pursuant to a violation of Section 11-501, or a similar provision of a local ordinance, the hearing shall be conducted by the circuit court having jurisdiction. This judicial hearing, request or process shall not stay or delay the statutory summary suspension." (Ill.Rev.Stat.1989, ch. 95 1/2, par. 2-118.1(b).)

The Trainor court interpreted this 30-day time period as mandatory and held that the failure to hold a hearing within 30 days of the request, unless the delay was occasioned by defendant, violated defendant's right to due...