People v. Lutter

Citation42 N.E.3d 843
Decision Date18 May 2015
Docket NumberNo. 2–14–0139.,2–14–0139.
PartiesThe PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Scott LUTTER, Defendant–Appellant.
CourtUnited States Appellate Court of Illinois

42 N.E.3d 843

The PEOPLE of the State of Illinois, Plaintiff–Appellee
v.
Scott LUTTER, Defendant–Appellant.

No. 2–14–0139.

Appellate Court of Illinois, Second District.

May 18, 2015.


42 N.E.3d 845

Donald J. Ramsell, of Ramsell & Associates, LLC, of Wheaton, for appellant.

Robert B. Berlin, State's Attorney, of Wheaton (Lisa Anne Hoffman and Kristin M. Schwind, Assistant State's Attorneys, of counsel), for the People.

OPINION

Justice ZENOFF delivered the judgment of the court, with opinion.

¶ 1 Following a bench trial, defendant, Scott Lutter, was found guilty of reckless driving (625 ILCS 5/11–503(a)(1) (West 2012)). He appeals, contending that the information charging him with this offense was filed outside the statute of limitations and that the State failed to prove beyond a reasonable doubt that an exception to the statute of limitations applied. We reverse.

¶ 2 On September 19, 2013, the State filed an information charging defendant with driving under the influence of alcohol (625 ILCS 5/11–501(a)(2) (West 2012)), leaving the scene of a property-damage accident (625 ILCS 5/11–402(a) (West 2012)), reckless driving (625 ILCS 5/11–503(a)(1) (West 2012)), failure to notify the Secretary of State of a change of address (625 ILCS 5/3–416(a) (West 2012)), and reckless conduct (720 ILCS 5/12–5(a) (West 2012)). The information alleged that the offenses occurred on January 10, 2012. It further alleged that the limitations period was tolled while case No. 12–DT–189 was pending.

¶ 3 The matter proceeded to a bench trial, where Dejan Gakovic testified that on January 10, 2012, his car was stopped at a railroad crossing in Bensenville. The gates were down, as a train was passing. He felt a bump as another car hit him from behind. He identified defendant as the other car's driver. After defendant hit his car a total of six times, Gakovic called the police. When the gates went up, defendant went around him on the right.

¶ 4 Officer Stephens testified that he responded to a report of a vehicle being pushed into a train. He arrived at the intersection and saw a vehicle that appeared to be pushing another toward the passing train. When the gates went up, defendant's vehicle passed the other car on the right shoulder and continued across the railroad tracks, where Stephens eventually stopped it.

¶ 5 After the State rested, defendant moved for a judgment of acquittal. Defense

42 N.E.3d 846

counsel argued that, because the information showed on its face that it was filed beyond the statute of limitations, the State had to prove, as an element of its case, a statutory exception that would toll the limitations period, but had not done so. The State, citing People v. Gray, 396 Ill.App.3d 216, 338 Ill.Dec. 583, 924 N.E.2d 1109 (2009), argued that defendant had forfeited the issue by not raising it in a motion to dismiss. The trial court denied the motion and found defendant guilty of reckless driving. The court denied defendant's motion for a new trial and sentenced him to court supervision. Defendant timely appeals.

¶ 6 Defendant's brief lists three separate issues, but all relate to the same point: that the State did not prove beyond a reasonable doubt an event that tolled the limitations period. Defendant was charged with five misdemeanors. Generally, the State must commence a prosecution for a misdemeanor within one year and six months after the offense was committed. 720 ILCS 5/3–5(b) (West 2012). The limitations period may be either tolled or extended for various reasons, including when “[a] prosecution is pending against the defendant for the same conduct.” 720 ILCS 5/3–7(c) (West 2012).

¶ 7 A long line of Illinois cases holds that, “[w]here an indictment on its face shows that an offense was not committed within the applicable limitation period, it becomes an element of the State's case to allege and prove the existence of facts which invoke an exception to the limitation period.” People v. Morris, 135 Ill.2d 540, 546, 143 Ill.Dec. 215, 554 N.E.2d 150 (1990). Morris held that the issue is like “the other elements which the State must prove, such as the elements of the offense with which a defendant is being charged.” Id.

¶ 8 Here, although the information vaguely alleged facts that would arguably toll the limitations period, the State offered no evidence whatsoever of those facts during the trial. Thus, defendant's motion for acquittal was well taken and should have been granted.

¶ 9 Under Morris, the State had to not only allege, but prove, those facts, as they became an element of its case. Id. Although few cases have dealt with the State's failure to prove an exception to the statute of limitations, courts have reversed convictions where the State did not offer such evidence at trial. See People v. Ross, 325 Ill. 417, 420, 156 N.E. 303 (1927) (“It being incumbent upon the prosecution to allege the existence of facts which bring the case within the exception to the Statute of Limitations, the burden of proving the allegation necessarily follows.”); People v. Whittington, 143 Ill.App. 438, 440–41 (1908).

¶ 10 The State argues, and the trial court held, that the State was relieved of its burden because defendant did not move to dismiss the information on limitations grounds under section 114–1(a)(2) of the Code of Criminal Procedure of 1963. 725 ILCS 5/114–1(a)(2) (West 2012). Section 114–1(a) provides for the dismissal of a charging instrument before trial on various grounds. 725 ILCS 5/114–1(a) (West 2012). That section further provides that a motion to dismiss must be filed within a reasonable time after the defendant has been arraigned and that any “motion not filed within such time or an extension thereof shall not be considered by the court and the grounds therefor * * * are waived.” 725 ILCS 5/114–1(b) (West 2012). The State concludes that, because defendant did not file a motion before trial raising the limitations defense, he forfeited it. Defendant contends that to require him to file a motion to dismiss violates his

42 N.E.3d 847

due process rights because it shifts the burden of proof. We agree with defendant.

¶ 11 The State's argument fails to account for Morris's holding that the exception became an element of the State's case. Because this is so, defendant could not forfeit the issue by failing to raise it pretrial. A defendant is entitled to “ ‘a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.’ ” Apprendi v. New Jersey, 530 U.S. 466, 477, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (quoting United States v. Gaudin, 515 U.S. 506, 510, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995) ). The State always has the burden of proving beyond a reasonable doubt the elements of the crime charged and it is improper for the State to attempt to shift the burden of proof to the defendant. People v. Robinson, 391 Ill.App.3d 822, 841, 330 Ill.Dec. 519, 909 N.E.2d 232 (2009) ; see also People v. Peppers, 352 Ill.App.3d 1002, 1008, 288 Ill.Dec. 502, 817 N.E.2d 1152 (2004) (defendant may attack sufficiency of the evidence at any time; issue cannot be forfeited). As defendant points out, there is even a pattern jury instruction providing that the State has the burden of proving beyond a reasonable doubt the existence of an exception to the statute of limitations. Illinois Pattern Jury Instructions, Criminal, No. 24–25.23 (4th ed. 2000). Thus, because the exception to the statute of limitations was an element of the State's case, defendant did not forfeit the issue by failing to raise it in a pretrial motion and the State was not relieved of the burden of proving the exception at trial.

¶ 12 We distinguish the present situation from that in People v. Gwinn, 255 Ill.App.3d 628, 194 Ill.Dec. 362, 627 N.E.2d 699 (1994), where we held that the defendant had to file a motion to dismiss pursuant to section 114–1(a)(2) in order to raise the statute of limitations as a bar to his prosecution. Gwinn, 255 Ill.App.3d at 631, 194 Ill.Dec. 362, 627 N.E.2d 699. In Gwinn, unlike in the present case, the State did not allege in the charging instrument that the offense was outside the statute of limitations but that there existed an exception to the limitations period. Gwinn, 255 Ill.App.3d at 630–31, 194 Ill.Dec. 362, 627 N.E.2d 699. In the Gwinn situation, the only way a defendant can raise the issue is by filing a motion to dismiss. Then, if the motion to dismiss is denied, the defendant can raise the expiration of the statute of limitations as an affirmative defense at trial and avail himself or herself of the jury instruction.

¶ 13 Gray, on which the State relies, does not persuade us otherwise. There, the court held that Morris 's requirement “that the State must plead and prove the circumstances justifying either an extension or tolling of the limitation period, should not be interpreted to mean the State has to prove such circumstances to the jury in every case.” Gray, 396 Ill.App.3d at 224, 338 Ill.Dec. 583, 924 N.E.2d 1109. The court concluded that “in the majority of cases, including the case before us, the State must prove to the court before the trial, upon a challenge by the defendant, typically in the form of a motion to dismiss * * * that particular circumstances justify an extension or...

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    • United States Appellate Court of Illinois
    • 14 Septiembre 2015
    ...of credible evidence to show that the State met its burden. Lloyd, 2013 IL 113510, ¶ 44, 369 Ill.Dec. 759, 987 N.E.2d 386. Accordingly, 42 N.E.3d 843 we reverse defendant's conviction for criminal sexual assault.¶ 29 Reversed.Justices CONNORS and HARRIS concurred in the judgment and opinion......
  • People v. Casas
    • United States
    • United States Appellate Court of Illinois
    • 20 Abril 2018
    ...for handling such challenges was previously unclear, as we pointed out in People v. Lutter , 2015 IL App (2d) 140139, 397 Ill.Dec. 597, 42 N.E.3d 843. After our decision there, however, the legislature enacted Public Act 100–434 (eff. Jan. 1, 2018), which points the way forward. Under the n......
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    • United States Appellate Court of Illinois
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