People v. Carlton, 81-591

• Court: United States Appellate Court of Illinois
• Citation: 436 N.E.2d 720,62 Ill.Dec. 694,106 Ill.App.3d 780
• Docket Number: No. 81-591,81-591
• Parties: , 62 Ill.Dec. 694 PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Mark CARLTON, Defendant-Appellee.
• Decision Date: 02 June 1982

Page 720

436 N.E.2d 720 106 Ill.App.3d 780, 62 Ill.Dec. 694 PEOPLE of the State of Illinois, Plaintiff-Appellant,
v.
Mark CARLTON, Defendant-Appellee. No. 81-591. Appellate Court of Illinois, Second District. June 2, 1982.

J. Michael Fitzsimmons, State's Atty., Barbara A. Preiner, Asst. State's Atty., Wheaton, Phyllis J. Perko, Elgin, Marshall Stevens, State's Attys. Appellate Service Commission, Elgin, for plaintiff-appellant.

NASH, Justice:

The State seeks to appeal from a pretrial order of the trial court suppressing evidence. The record on appeal and the State's brief have been filed in this court, but defendant has not responded with a brief. Although this is an appeal by the State the record does not show compliance by the trial court with Supreme Court Rule 607(a) (73 Ill.2d R. 607(a)). Nor has the State certified that the suppression order substantially impairs its ability to prosecute

Page 721

[62 Ill.Dec. 695] the case. In these circumstances, it must first be determined whether this court may properly consider the merits of the appeal.

[106 Ill.App.3d 781] Defendant was charged by information with theft of certain cases of whiskey valued in excess of $150 and the Public Defender was initially appointed, at his request, to represent him. Thereafter, private counsel, William J. McGrath, entered his appearance on behalf of defendant and the Public Defender withdrew. Defendant's retained counsel filed a motion to suppress as evidence three cases of Chivas Regal whiskey seized by police officers from the trunk of an automobile in which defendant was a passenger, allegedly in violation of the constitutions of the State of Illinois and the United States. After an evidentiary hearing the trial court entered an order of suppression on July 2, 1981. The record further discloses that thereafter on July 17, the State filed its response to defendant's motion for discovery and on July 20 the case was continued to August 3 for motions and setting.

On July 30 the State filed its notice of appeal from the order suppressing evidence and served a copy thereof on defendant's counsel of record. As noted, the record on appeal and the State's brief have been filed in this court; however, no appearance of attorney or brief has been filed here on behalf of defendant.

Supreme Court Rule 607(a) provides, inter alia :

" * * * in cases in which the State appeals, the trial court shall determine whether the defendant is represented by counsel on appeal....