People v. McClurg, 4-89-0692

• Decision Date: 08 March 1990
• Docket Number: No. 4-89-0692,4-89-0692
• Parties: , 141 Ill.Dec. 922 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Shannon A. McCLURG, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 290

552 N.E.2d 290 195 Ill.App.3d 381, 141 Ill.Dec. 922 The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Shannon A. McCLURG, Defendant-Appellant. No. 4-89-0692. Appellate Court of Illinois,
Fourth District. March 8, 1990.

[195 Ill.App.3d 383] Paul R. Wilson, Jr., Wilson and Lanto, P.C., Rantoul, for defendant-appellant.

Thomas J. Difanis, State's Atty., Urbana, Kenneth R. Boyle, Director, State's Attys. Appellate Prosecutor, Robert J. Biderman, Deputy Director, Dale M. Wood, Staff Atty., Springfield, for plaintiff-appellee.

Justice SPITZ delivered the opinion of the court:

Shannon Ann McClurg, defendant, appeals from the judgment of conviction entered by the circuit court of Champaign County after a jury found her guilty of driving while under the influence of alcohol (DUI). (Ill.Rev.Stat.1987, ch. 95 1/2, par. 11-501(a)(2).) Defendant was sentenced to intensive probation for a period of 12 months, and was ordered to pay a fine of $100, court costs of $114, and $25 per month as a supervision fee. The conditions of defendant's probation included performance of 300 hours of public service work during the first 10 months of probation, refraining from the consumption of alcohol,

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[141 Ill.Dec. 923] 30 days' home confinement, and abiding by a curfew set by the personnel of the Probation Supervision Program of the Champaign County Court Services Department.

The first issue to consider on appeal is whether defendant's "motion in arrest of judgment" should have been granted by the trial court. The defendant was originally issued a uniform traffic citation on April 1, 1989, alleging that she was "driving under the influence" in violation of section 11-501 of the Illinois Vehicle Code (Code) (Ill.Rev.Stat.1987, ch. 95 1/2, par. 11-501). However on June 9, 1989, four days before trial, the State filed an information alleging the defendant was DUI in violation of section 11-501(a)(2) of the Code. The record reflects, however, that the information was first brought to defendant's attention on June 13, 1989, the day the hearing of this matter commenced, and at which time defendant was arraigned on the information.

The record does not disclose defendant filed a formal motion in arrest of judgment. Instead, defendant merely questioned at the [195 Ill.App.3d 384] hearing whether the State was filing a new charge againt defendant. The trial court refused to answer the question. However, a complaint which fails to allege an offense is void and may be attacked at any time, even on appeal. (People v. Heard (1970), 47 Ill.2d 501, 266 N.E.2d 340.) Therefore, the issue herein raised by defendant will be considered on appeal.

The State contends the filing of the information clarified the allegation in the citation and cured any defect therein. The defendant, on the other hand, argues the citation is void because it fails to state a cause of action, and therefore, the substantive amendment thereto in the information is also void.

A complaint which does not set forth the essential elements of an offense fails to state an offense and does not sufficiently notify an accused of the charges against her. A charge which fails to state an offense cannot support a judgment. People v. Smith (1984), 99 Ill.2d 467, 77 Ill.Dec. 108, 459 N.E.2d 1357; People v. Leach (1972), 3 Ill.App.3d 389, 279 N.E.2d 450.

In People v. Ziltz (1983), 98 Ill.2d 38, 74 Ill.Dec. 40, 455 N.E.2d 70, the Illinois Supreme Court pointed out that the subsections of section 11-501(a) of the Code are separate statutory offenses, referring specifically to driving with a blood-alcohol level of 0.10 (section 11-501(a)(1) of the Code) and DUI (section 11-501(a)(2) of the Code). Relying on Smith and Ziltz, the appellate court in People v. Utt (1983), 122 Ill.App.3d 272, 77 Ill.Dec. 840, 461 N.E.2d 463, decided that where a uniform traffic citation alleged simply that defendant was "driving under the influence," the charge was not sufficient, requiring a reversal of that conviction.

Prior to Utt, the Illinois Supreme Court decided Heard, in which the court reasoned as follows:

"Here, the complaint lacked the necessary certainty to charge an offense and therefore it was void and vulnerable to attack at any time. [Citations.] The State cannot properly invoke section 111-5 of the Code of Criminal Procedure which permits the amendment of a complaint, information or indictment for formal defects because here the defect is fundamental and the complaint void. (See People v. Billingsley, 67 Ill.App.2d 292[, 213 N.E.2d 765].) It is true that section 111-5 includes pleading in the disjunctive as an example of a formal defect, but from what we have said it is clear that the legislature was speaking of instances where the use of the disjunctive created but a formal error. The section was not intended to permit the State to vivify a void charge." (Heard, 47 Ill.2d at...