People v. Mann, 2-02-0002.

• Court: United States Appellate Court of Illinois
• Citation: 341 Ill. App.3d 832,794 N.E.2d 425,276 Ill.Dec. 530
• Docket Number: No. 2-02-0002.,2-02-0002.
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Donald R. MANN, Defendant-Appellee.
• Decision Date: 07 August 2003

794 N.E.2d 425
341 Ill. App.3d 832
276 Ill.Dec. 530

The PEOPLE of the State of Illinois, Plaintiff-Appellant,
v.
Donald R. MANN, Defendant-Appellee

No. 2-02-0002.

Appellate Court of Illinois, Second District.

August 7, 2003.

Rehearing Denied August 21, 2003.

794 N.E.2d 426

Joseph E. Birkett, DuPage County State's Attorney, Wheaton, Martin P. Moltz, Deputy Director, Joan M. Kripke, State's Attorneys Appellate Prosecutor, Elgin, for the People

G. Joseph Weller, Deputy Defender (Court-appointed), Linda A. Johnson, Office of the State Appellate Defender, Elgin, for Donald R. Mann.

Justice KAPALA delivered the opinion of the court:

The State appeals from an order of the circuit court of Du Page County dismissing the indictment filed in this cause. For the reasons that follow, we reverse and remand.

On July 13, 1996, defendant, Donald R. Mann, was charged with various traffic offenses by the issuance of four Illinois citation and complaint forms. One of those complaints alleged that on that same date he committed the Class A misdemeanor offense of driving while license revoked (625 ILCS 5/6-303(a) (West 1996)). Defendant signed an individual bond and was required to appear in court on August 20, 1996.

794 N.E.2d 427

After defendant failed to appear in court on several dates and was arrested several times on bench warrants, the trial court, on May 22, 2001, granted the State's motion to nol-pros the Illinois citation and complaints, allowing the State to enhance the driving-while-license-revoked charge to a felony

On August 9, 2001, the grand jury returned an indictment charging defendant with the felony offense of aggravated driving while license revoked (625 ILCS 5/6-303(d) (West 1996)) alleging:

"[O]n or about the 13th day of July 1996 at and within Du Page County, Illinois, Donald R. Mann committed the offense of Aggravated Driving While License Revoked in that said defendant drove or was in actual physical control of a motor vehicle on a highway in Illinois, at a time when his driver's license, permit, or privilege to operate a motor vehicle was revoked pursuant to a violation of 625 ILCS 5/11-501, the defendant having been previously convicted of Driving While License Revoked in violation of 625 ILCS 5/6-303, the original revocation being based upon the defendant's conviction for a violation of 625 ILCS 5/11-501, and a prosecution was pending against this defendant for the same conduct from July 13, 1996[,] to May 22, 2001[,] which period is excluded from the applicable limitation under 720 ILCS 5/3-7(c)* * *."

Defendant filed a motion to dismiss the indictment on the ground that the State failed to file the indictment within three years of the date of the offense, thereby barring the prosecution under the applicable limitations period (720 ILCS 5/3-5(b) (West 1996)). At the hearing on defendant's motion, the assistant State's Attorney argued that the misdemeanor driving-while-license-revoked charge was a prosecution "pending against defendant for the same conduct" as was alleged in the indictment and, therefore, the period of time from July 13, 1996, until May 22, 2001, was excluded from the three-year statute of limitations pursuant to section 3-7(c) of the Criminal Code of 1961 (Criminal Code) (720 ILCS 5/3-7(c) (West 1996)). In response, defense counsel took the position that the criminal proceeding on a misdemeanor charge pursuant to the filing of an Illinois citation and complaint did not constitute "a prosecution" as that term is used in section 3-7(c).

In ruling on defendant's motion to dismiss the indictment, the trial court stated:

"It really comes down to a situation where there was a misdemeanor traffic charge pending by way of complaint which is certainly sufficient for a misdemeanor. But the issue is whether or not that is a prosecution pending since the defendant is now charged with a felony offense.

I find that it is not the same offense. There are additional elements required for purposes of the felony. Although that's presented at sentencing, it's not the same offense for purposes of the prosecution pending.

So for that reason, I find that the prosecution was not commenced within the applicable statute of limitations period and the motion to dismiss will be granted."

The State timely appeals from that order pursuant to Supreme Court Rule 604(a)(1). 188 Ill.2d R. 604(a)(1).

As a preliminary matter, we take up the State's motion to supplement the record on appeal with the common law record in the misdemeanor proceeding and with the affidavit of the assistant State's Attorney who handled this cause in the trial court. Defendant filed an objection to the State's motion, contending that the common law record in the misdemeanor proceeding and

794 N.E.2d 428

the prosecutor's affidavit are not part of the record in this cause. We ordered that the motion be taken with the case and now grant the State's motion to supplement the record with the common law record in the misdemeanor proceeding, and deny the motion to supplement the record with the prosecutor's affidavit

The State's motion regarding the common law record in the misdemeanor proceeding is granted as to the pertinent facts contained therein because it is proper for this court to judicially notice that court file even though the trial court did not formally do so. A reviewing court may judicially notice factual evidence where the facts are capable of immediate and accurate demonstration by resort to easily accessible sources of indisputable accuracy. Vulcan Materials Co. v. Bee Construction, 96 Ill.2d 159, 166, 70 Ill.Dec. 465, 449 N.E.2d 812 (1983); People v. Davis, 65 Ill.2d 157, 161-65, 2 Ill.Dec. 572, 357 N.E.2d 792 (1976). When and how defendant was charged, his failure to appear in court, his arrests on bench warrants, and when the State's motion to nol-pros was granted are pertinent matters contained in the common law record of the underlying misdemeanor proceeding. These matters are capable of immediate and accurate demonstration by resort to an easily accessible source of indisputable accuracy. Our judicial notice of these pertinent facts from the common law record in the misdemeanor proceeding is also appropriate because the State, the trial court, and defendant all assumed them to be true at the hearing on defendant's motion to dismiss the indictment, and defendant has not denied that these facts are true in this court. See Midway Tobacco Co. v. Mahin, 42 Ill. App.3d 797, 811, 1 Ill.Dec. 627, 356 N.E.2d 909 (1976). The State's motion to supplement the record on appeal with the prosecutor's affidavit is denied because, ordinarily, an attorney's affidavit cannot be used to supplement the record on appeal. Silny v. Lorens, 73 Ill.App.3d 638, 642-43, 29 Ill.Dec. 710, 392 N.E.2d 267 (1979).

Because the trial court's dismissal of the indictment on statute of limitations grounds in this case raises a purely legal issue, we review de novo the trial court's rulings. People v. Blankschein, 337 Ill.App.3d 526, 529, 271 Ill.Dec. 973, 786 N.E.2d 231 (2003). Generally, a prosecution for a felony must be commenced within three years after the commission of the offense. 720 ILCS 5/3-5(b) (West 1996). Where an indictment facially shows that an offense was not committed within the applicable statute of limitations, it becomes an element of the State's case to allege and prove the existence of facts that invoke an exception to the limitations period. People v. Morris, 135 Ill.2d 540, 546, 143 Ill.Dec. 215, 554 N.E.2d 150 (1990). Section 3-7 excludes certain periods of time from the applicable statute of limitations and provides in pertinent part:

"The period within which a prosecution must be commenced does not include any period in which:

* * *

(c) A prosecution is pending against the defendant for the same conduct, even if the

...