People v. Ziobro ( 2011 )

Docket No. 110085.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JAMES
ZIOBRO et al., Appellees.
Opinion filed April 21, 2011.
JUSTICE GARMAN delivered the judgment of the court, with
opinion.
Chief Justice Kilbride and Justices Thomas, Karmeier, Burke, and
Theis concurred in the judgment and opinion.
Justice Freeman specially concurred, with opinion.
OPINION
This case comes to us as a consolidated appeal. Defendants James
Ziobro, Michael Lemoine, and Todd Wambsganss were each issued
a citation for driving under the influence (625 ILCS 5/11–501(a)
(West 2006)), among other traffic violations. In each instance, the first
appearance date listed on the citation was beyond the period
prescribed by Supreme Court Rule 504 (Ill. S. Ct. R. 504 (eff. Jan. 1,
1996)). The defendants’ attorneys filed appearances with the court
and each demanded a trial in accordance with the procedure laid out
by Supreme Court Rule 505 (Ill. S. Ct. R. 505 (eff. Jan. 1, 1996)). No
defendant was given a new appearance date or a trial date before his
original first appearance date arrived, and each appeared in the circuit
court of Will County and filed a motion to dismiss the charges at that
time due to the violation of Rule 504. In each case, the charges were
dismissed and the State was barred from refiling.
The appellate court upheld the dismissals on the basis that the
defendants announced ready for trial when they appeared on the initial
appearance date, but were not tried at that time because the State was
not ready. 397 Ill. App. 3d 831, 838-39. The State filed a petition for
leave to appeal pursuant to Supreme Court Rule 315 (Ill. S. Ct. R.
315 (eff. Feb. 26, 2010)), which we allowed.1
For the reasons that follow, we reverse the judgment of the
appellate court and remand to the circuit court for further proceedings
consistent with this opinion.
Background
Rules 504 and 505 govern the procedures to be used in setting and
rescheduling first appearance dates for traffic violations. Rule 504
states, in pertinent part:
“The date set by the arresting officer or the clerk of the
circuit court for an accused’s first appearance in court shall
not be less than 14 days but within 60 days after the date of
the arrest, whenever practicable.” Ill. S. Ct. R. 504 (eff. Jan.
1, 1996).
Rule 505 directs an officer to issue a written notice to the accused
when issuing a traffic citation that provides:
“If you intend to plead ‘not guilty’ to this charge, or if, in
addition, you intend to demand a trial by jury, so notify the
clerk of the court at least 10 days (excluding Saturdays,
Sundays or holidays) before the day set for your appearance.
1
An additional case, People v. Shanahan, was consolidated with these
cases before the appellate court. The court upheld the dismissal in that case
based on the Rule 504 violation, but reversed the “with prejudice” portion of
the judgment because the defendant in that case did not announce “ready for
trial” before moving to dismiss. 397 Ill. App. 3d at 840. The State did not
appeal this portion of the appellate court’s ruling, so defendant Shanahan’s
case is not before the court.
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A new appearance date will be set, and arrangements will be
made to have the arresting officer present on that new date.
Failure to notify the clerk of either your intention to plead ‘not
guilty’ or your intention to demand a jury trial may result in
your having to return to court, if you plead ‘not guilty’ on the
date originally set for your court appearance.” Ill. S. Ct. R.
505 (eff. Jan. 1, 1996).
When the accused complies with this time frame and timely submits
notice of an intent to plead “not guilty,” the rule directs the clerk to
“set a new appearance date not less than 7 days nor more than 60 days
after the original appearance date set by the arresting officer or the
clerk of the circuit court, and notify all parties of the new date and the
time for appearance.” Id. Rule 505 further provides that “[i]f the
accused demands a trial by jury, the trial shall be scheduled within a
reasonable period.”
In each of the consolidated cases, an error was committed by both
the arresting officer in failing to schedule the first appearance within
the 14- to 60-day time frame and the clerk of the court in failing to set
the new appearance date before the original appearance date arrived.
Ziobro
On June 6, 2008, following a traffic accident, defendant James
Ziobro was issued citations for driving under the influence (625 ILCS
5/11–501(a)(1), (a)(2) (West 2006)), failure to reduce speed to avoid
an accident (625 ILCS 5/11–601(a) (West 2006)), and operating an
uninsured vehicle (625 ILCS 5/3–707 (West 2006)). The arresting
officer set the initial court appearance date for August 7, 2008–62
days after the arrest. Defendant filed an appearance, along with a
demand for jury trial and a speedy-trial demand, on July 23, 2008.
Because the case had not yet been set for trial and a new appearance
date had not yet been set, defendant appeared on August 7 (the
original appearance date set on the ticket), announced “ready for
trial,” and filed a motion to dismiss the charges based on the violation
of Rule 504, which requires that a defendant’s first appearance be set
no later than 60 days after the date of arrest. The motion to dismiss
was granted on August 28, and the cause was dismissed with
prejudice. The record reflects that the trial court found “that Section
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504 was violated and, therefore, [granted] the motion to dismiss by
the defendant,” citing People v. Walter, 335 Ill. App. 3d 171 (2002),
and People v. Alfonso, 191 Ill. App. 3d 963 (1989). The court then
concluded that, because the State had not moved to nol-pros during
the 60-day window, which would have allowed it to refile the action,
there was no reason to allow a refiling in this case. The court therefore
dismissed the cause with prejudice.
Lemoine
Defendant Michael Lemoine was issued citations for driving under
the influence (625 ILCS 5/11–501(a)(2) (West 2006)) and improper
lane usage (625 ILCS 5/11–709 (West 2006)) on April 26, 2008. His
initial court appearance was set for June 26, 2008–61 days after
arrest. Defendant entered an appearance on June 11, 2008, along with
demands for a speedy trial and a jury trial. As no new appearance date
or trial date had been set, defendant appeared in court with his
attorney on June 26, 2008. He announced ready for trial and filed a
motion to dismiss for violation of Rule 504 when the State did not
also announce ready for trial. The circuit court granted the motion and
dismissed with prejudice, noting that there was no showing of
impracticability. The State filed a motion to reconsider, which the
court denied, finding that Rule 504 requires dismissal when first
appearance date is more than 60 days after arrest.
Wambsganss
Defendant Todd Wambsganss was issued citations for driving
under the influence (625 ILCS 5/11–501(a)(2) (West 2006)) and
speeding (625 ILCS 5/11–601(b) (West 2006)) on September 18,
2008. The first court appearance was set by the arresting officer for
November 20, 2008–63 days after arrest. Defendant’s attorney
entered his appearance on November 5, along with speedy-trial and
jury-trial demands. Defendant was not provided with a new
appearance date or a trial date before November 20, when he
appeared and announced ready for trial. When the State was unable
to announce ready for trial, defendant filed a motion to dismiss. The
circuit court granted the motion, stating:
“[T]he plain language of Rule 504 provides that the setting of
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a first appearance date outside of the prescribed period of
Rule 504, which is over 60 days, is excusable only upon
evidence of the impracticality of setting the date within the
prescribed period.
I heard no evidence of any impracticality of setting that
date within the prescribed period. So by case law I think it’s
necessary that I, I order the dismissal of this case.”
When the State moved to clarify this order, the circuit court specified
that the dismissal was with prejudice.
Appellate Court
The appellate court affirmed the dismissals, concluding that the
circuit courts did not abuse their discretion in dismissing the charges,
as “the State did not present any evidence that it was impracticable to
comply with Supreme Rule 504’s time limitations.” 397 Ill. App. 3d
at 838. The court upheld the “with prejudice” aspect of the dismissals
because each of the three defendants announced “ready for trial” on
his respective appearance date and, the court concluded, the State’s
failure to proceed to trial at that time constituted a failure to
prosecute, which is a disposition on the merits and bars further
proceedings. Id. at 838-39.
Analysis
The parties focus on the circuit courts’ discretion to dismiss the
charges against the defendants and their authority to dismiss with
prejudice. We find the first issue dispositive and, therefore, limit our
analysis to the propriety of the dismissals in these cases for violations
of Rule 504.
Supreme Court Rule 504 requires an arresting officer or the clerk
of the court to set the first appearance in court “not less than 14 days
but within 60 days after the date of the arrest, whenever practicable.”
Ill. S. Ct. R. 504 (eff. Jan. 1, 1996). In each of the cases before this
court, the arresting officer set the date of appearance beyond this 60-
day time frame and the State presented no evidence that complying
with this time frame would have been impracticable. The State first
argues that the circuit courts did not have the authority, under Rule
504, to dismiss the charges against the defendants unless the
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defendants were able to demonstrate that they were prejudiced by the
Rule 504 violation. The defendants argue in response that if the circuit
court finds that it was not impracticable to set the appearance date
within Rule 504’s time limitations, its dismissal of charges should be
disturbed only upon a finding that it abused its discretion.
Even if we agreed that, when these cases were decided,2 the circuit
court had authority to dismiss charges for a Rule 504 violation, we
find that the courts in these cases abused their discretion by
automatically dismissing without requiring a showing that the
defendant’s due process rights were violated, for the reasons set forth
below.
In Village of Park Forest v. Fagan, 64 Ill. 2d 264, 266, 268
(1976), we held that “the time limitations in Rule 504 are directory,”
and reversed a dismissal in which the circuit court determined that it
would have been practicable to set an appearance date within the
prescribed period. We noted, however, that notwithstanding the rule’s
directory construction, “an arresting officer should schedule early
appearance dates ‘whenever practicable,’ ” in order to comply with
the rule. Id. at 268.
In the consolidated cases, the State concedes that there was a clear
violation of Rule 504, as the first appearance dates were set outside
of the 14- to 60-day window and there was no evidence that it would
have been impracticable to schedule the appearances within that time
frame. The record in each case suggests that the circuit court
2
We note that, since these cases were before the circuit courts, the
legislature has prohibited the dismissal of misdemeanor charges for
violations of Rule 504. Pub. Act 96–694 (eff. Jan. 1, 2010) (adding 625
ILCS 5/16–106.3). This new provision provides, in its entirety:
“In any case alleging a violation of this Code or similar local
ordinance which would be chargeable as a misdemeanor, a case
shall not be dismissed due to an error by the arresting officer or the
clerk of the court, or both, in setting a person’s first appearance
date, subject to the right of speedy trial provided under Section
103–5 of the Code of Criminal Procedure of 1963.” Pub. Act
96–694 (eff. Jan. 1, 2010).
Therefore, our analysis is limited to the law as it existed before the enactment
of Public Act 96–694.
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dismissed the charges automatically upon a finding that the time
restriction was violated and that the State had failed to show that it
was impracticable to comply with the time restriction set forth in the
rule. In each case, the circuit court required nothing more than a
showing that Rule 504 had been violated (the time limit had not been
respected by the arresting officer and the State could not show
impracticality) before granting the defendant’s motion to dismiss. The
appellate court approved, finding that because “the State did not
present any evidence that it was impracticable to comply with
Supreme Court Rule 504’s time limitations[,] *** the trial court’s
orders of dismissal were not an abuse of discretion.” 397 Ill. App. 3d
at 838.
This approach is consistent with other appellate court cases. For
example, in People v. Alfonso, 191 Ill. App. 3d 963, 966-67 (1989),
a divided appellate court found that the pertinent question on review
of a dismissal for violation of Rule 504 was whether the trial court
abused its discretion in its determination of practicability, rejecting the
argument that dismissal should only be upheld if the violation caused
“injury to [the] public interest or [to] private rights.” See also People
v. Walter, 335 Ill. App. 3d 171, 173-74 (2002) (“If the trial court
determines that it was not impracticable to set the date within the
rule’s time limitation, the court’s dismissal of charges will not be
disturbed on review absent an abuse of discretion.” (citing Alfonso,
191 Ill. App. 3d 963)).
The question of whether the State proved impracticability,
however, only aids in establishing that the rule was violated. Under the
clear terms of Rule 504, there is a violation of the rule’s timing
requirements only when there is no showing that it would have been
impracticable to comply with them. If the circuit court were to find
that the first appearance was scheduled outside of the 14- to 60-day
window, but that it would have been impracticable to schedule it
within that time frame, there would be no violation of the rule.
Instead, it is only when the time limitations have not been complied
with and there has been no showing of impracticability that Rule 504
is violated.
Once a violation has been established, the court must determine
the consequence of such violation. It is at this point that the directory
nature of the time limitations is instructive. In People v. Robinson,
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217 Ill. 2d 43, 47 (2005), this court addressed the mandatory-
directory dichotomy when a statute directing the clerk of the court to
serve an order of dismissal on a petitioner within 10 days of entry was
violated by 2 days. The mandatory-directory dichotomy, we noted,
“concerns the consequences of a failure to fulfill an obligation.” Id. at
52. The obligation at issue in the present cases is the arresting officer’s
obligation, when setting an initial appearance date, to schedule it
within the prescribed time frame, whenever practicable.
The directory reading we have given to the Rule 504 time limits
acknowledges “that no specific consequence is triggered by the failure
to comply with the [rule].” People v. Delvillar, 235 Ill. 2d 507, 515
(2009). Dismissal is, therefore, not automatic in such cases. This
conclusion is underscored by the facts of Fagan. There, defendant
Holley Fagan was arrested and cited for driving under the influence
and her appearance date was set beyond the 45-day window then in
force. Fagan, 64 Ill. 2d at 265-66. She filed a motion to dismiss,
which was granted by the circuit court upon a determination that “it
would have been practicable for the officer to have set an appearance
date [within the appropriate time frame].” Id. at 266. After
establishing that Rule 504 is directory, not mandatory, this court
concluded that the circuit court was “acting under a misconception
regarding the manner in which Rule 504 is to be applied,” and
therefore reversed the dismissal. Id. at 268.
This conclusion is similarly supported by our holding in People v.
Norris, 214 Ill. 2d 92 (2005). In that case, we noted that “nowhere in
either Rule 504 or Rule 505 is a trial on the merits absolutely
guaranteed on the first appearance date,” and “what is being set in
Rules 504 and 505 is the mere ‘policy’ of this court and not an
inexorable command.” Norris, 214 Ill. 2d at 102, 103. Accordingly,
we found that “[b]oth rules allow for the trial judge to have complete
discretion over what should occur in a particular case.” Id. at 103.
As in Fagan, it appears that the circuit courts in these cases
wrongly concluded that dismissal was necessary upon a finding that
the arresting officers had failed to comply with Rule 504. None of the
circuit courts required a showing of any form of prejudice resulting
from the Rule 504 violations before dismissing the charges. For the
following reasons, we hold that this was an abuse of the courts’
discretion. In section 114–1 of the Code of Criminal Procedure, the
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legislature has set forth 11 grounds for dismissal of an indictment,
information, or complaint. 725 ILCS 5/114–1(a) (West 2006). A Rule
504 violation is not listed among these grounds. Id. In addition, this
court has previously acknowledged that circuit courts have inherent
authority to dismiss cases, stemming from “the obligation to insure a
fair trial.” People v. Lawson, 67 Ill. 2d 449, 456 (1977). Therefore,
while section 114–1 is not exclusive, we have recognized a circuit
court’s right to exercise its authority to dismiss outside of the
situations listed in section 114–1 only “when failure to do so will
effect a deprivation of due process or result in a miscarriage of
justice.” (Internal quotation marks omitted.) People v. Newberry, 166
Ill. 2d 310, 314 (1995) (quoting People v. Fassler, 153 Ill. 2d 49, 58
(1992), quoting People v. Sears, 49 Ill. 2d 14, 31 (1971)); see also
Norris, 214 Ill. 2d at 103-04, 105 (noting that, to the extent that
continuance motions were denied in that case “solely because the
judges felt they did not have the discretion to do anything else,” the
denials were in error, as “Rule 505 in no way so limits a trial judge’s
discretion,” and remanding for further proceedings, as “the defendants
may be able to show harassment, bad faith, or fundamental
unfairness,” which would be grounds for dismissal).
While a supreme court rule may give a circuit court authority to
dismiss for a violation thereof (see People v. Sullivan, 201 Ill. App. 3d
1011, 1012-13 (1990)), directory rules such as Rule 504, by
definition, carry no particular consequence (Delvillar, 235 Ill. 2d at
515). A mere violation of Rule 504 is not sufficient grounds, standing
alone, to dismiss charges, as “violation of the rule would [not]
ordinarily cause any injury to public interest or private rights.” Fagan,
64 Ill. 2d at 268. As such, we find that it was an abuse of the circuit
courts’ discretion in these consolidated cases to dismiss the charges
without requiring a showing of prejudice to the defendant. We
therefore reverse the dismissals of the charges in each of the cases and
remand for proceedings consistent with this opinion.
In light of the foregoing analysis, we conclude that the analytical
framework employed by the appellate court in Alfonso, 191 Ill. App.
3d 963, and Walter, 335 Ill. App. 3d 171, was erroneous. These cases
are, therefore, overruled.
Because we find that the circuit courts abused their discretion in
granting the motions to dismiss, we need not address their authority
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to dismiss with prejudice. However, we find it appropriate to offer
some guidance in these cases to the circuit courts on remand. Public
Act 96–694, effective January 1, 2010, affirmatively prohibits the
circuit courts from dismissing the DUI charges for a violation of either
Rule 504 or 505. Pub. Act 96–694 (eff. Jan. 1, 2010) (adding 625
ILCS 5/16–106.3). When, as here, a provision does not directly
address the temporal reach of the new statute, section 4 of the Statute
on Statutes governs, prohibiting the retroactive application of
substantive provisions, but providing that procedural law changes will
apply to ongoing proceedings. 5 ILCS 70/4 (West 2006); see also
Allegis Realty Investors v. Novak, 223 Ill. 2d 318, 331 (2006). This
new provision affects the possible consequences of a procedural
violation. Because Rule 504 is directory and a violation of the rule
does not otherwise guarantee dismissal of the case (as has been
discussed above), the statute does not affect a vested right. Thus, we
conclude that it is procedural in nature and, therefore, can be applied
“retroactively” to ongoing cases. On remand, the circuit courts are
therefore bound by the current law and do not have the discretion to
dismiss the charges for a violation of Rule 504 or 505, subject to the
right of speedy trial provided under section 103–5 of the Code of
Criminal Procedure of 1963.
Conclusion
We hold that, even if the circuit courts had discretion to dismiss
these consolidated cases due to Rule 504 violations at the time they
were decided, they abused their discretion in failing to require a
showing of prejudice to the defendants. The judgments of the
appellate court and of the circuit courts are therefore reversed and the
causes remanded to the circuit courts for further proceedings
consistent with this opinion.
Reversed and remanded.
JUSTICE FREEMAN, specially concurring:
Although I agree that dismissal is unwarranted in these cases, I do
so for reasons other than those expressed in the court’s opinion.
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As an initial matter, today’s opinion decides an issue not before
the court, i.e., whether Public Act 96–694 applies retroactively to
these defendants, who were ticketed before its effective date of
January 1, 2010. The retroactivity of the new legislation is not an issue
before the court, and by deciding it without the benefit of briefing, the
court has prevented the parties from any opportunity to speak to it
substantively. In fact, the State cites to the legislation in a footnote,
stating only that the problem “will not arise in the future” because
dismissal is now legislatively prohibited under the circumstances
presented here.
The legislation does play a role in today’s decision, but it is not the
one that the court envisions. The need for such legislation, one might
argue, was occasioned because the General Assembly was aware that
courts had the discretion to dismiss charges for a Rule 504 violation.
There are several reasons why such an argument might be persuasive.
Initially, there was judicial authority for such dismissals. See People
v. Walter, 335 Ill. App. 3d 171 (2002); People v. Alfonso, 191 Ill.
App. 3d 963 (1989). Second, cases such as Village of Park Forest v.
Fagan, 64 Ill. 2d 264 (1976), and People v. Norris, 214 Ill. 2d 92
(2005), stand for the proposition that dismissal may be appropriate if
Rule 504 is violated, which, of course, contradicts today’s
pronouncement that these cases state that no such discretion existed.
To support its conclusion, the court must overrule Walter and
Alfonso, but this is entirely unnecessary in this case, because each of
the three defendants not only received the benefit of Rule 504, they
forfeited the opportunity to assert any violation of it. All three
actually appeared within the 14 to 60 day window provided by Rule
504. They did so to file speedy-trial and jury demands and, in some
cases, to seek discovery. This fulfilled the purpose of the rule to grant
the opportunity for a “trial on the merits” within “a reasonable time”
after the appearance date. As this court recently explained about Rule
504 in Norris, the “policy” announced there, i.e., to grant trials on the
first appearance date, operates for fine-only offense cases, not for
misdemeanor traffic offenses, including DUI offenses. Therefore, this
“policy” simply has nothing to offer with respect to the analysis of this
case. Further, DUI trials are far more involved than trials in fine-only
cases. DUI trials are often complicated, involving multiple witnesses,
chemical testing, toxicology reports, and the like. Defendants are
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entitled to invoke their speedy-trial rights to force the State to move
the case expeditiously, but that right is entirely separate from the
“policy” announced in the rule. Norris, 214 Ill. 2d at 102.
Thus, by failing to raise the Rule 504 violation until after jury-trial
and speedy-trial demands were filed, defendants waived any right to
dismissal they may have had under Rule 504. It is for this reason and
this reason alone that I join in the court’s disposition of these cases.
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