concurring in part and dissenting in part:
I. Shannahan
I concur in the judgment only of that portion of the majority opinion which reverses the trial court’s dismissal with prejudice of the DUI charge against Shannahan.
II. Wambsganss, Ziobro and Lemoine
With respect to the defendants’ “fine only” offenses, I concede that the trial judge did have the discretion to dismiss the charges with prejudice. Further, I agree with the majority that the Will County clerk was not following the guidelines of Rule 505. 166 Ill. 2d R. 505. Once the defendants notified the clerk that they intended to plead not guilty within 10 days of their initial appearance date, the clerk should have scheduled a trial “within a reasonable period” in accordance with the rule. 166 Ill. 2d R. 505. However, the DUI charges, misdemeanors at minimum, should not have been dismissed with prejudice because the defendants were not entitled to a trial on the merits on the first appearance date.
I believe the majority’s opinion flies in the face of the Illinois Supreme Court’s decision in People v. Norris, 214 Ill. 2d 92 (2005). Although Norris dealt with slightly different facts than those before us, the court gave a thorough explanation of the application of Supreme Court Rules 504 and 505. 166 Ill. 2d Rs. 504, 505. The supreme court in Norris made it clear that a defendant charged with DUI is not guaranteed a trial on his first appearance date. The court “stress[ed] that nowhere in either Rule 504 or Rule 505 is a trial on the merits absolutely guaranteed on the first appearance date.” Norris, 214 Ill. 2d at 102. Rule 504 encourages, in stating as policy only, that an accused pleading “not guilty” should receive a trial on that first appearance date only when: (1) the offense is punishable by fine only; and (2) the arresting agency be exempt from Rule 505. Norris, 214 Ill. 2d at 99. A charge of driving under the influence, at minimum, is a Class A misdemeanor and, therefore, not a “fine only” offense. 625 ILCS 5/11—501(c) (West 2006).
The majority relies heavily on the language of People v. Rumler in its opinion. Rumler, 161 Ill. App. 3d 244 (1987). I would submit that Rumler is no longer good law as applied to the issue before us. At the time Rumler was written, Rule 504 (166 Ill. 2d R. 504) allowed for a trial on the first appearance date in all traffic cases. Since then, Rule 504 has been rewritten to apply only to “fine only” offenses. 166 Ill. 2d R. 504.
The majority states, “when a defendant is entitled to a trial on the merits and announces ‘ready for trial,’ the trial court must dismiss the charges against defendant if the State fails to proceed to trial.” 397 Ill. App. 3d at 837; Rumler, 161 Ill. App. 3d at 246. This is wrong on several fronts. As stated above, the supreme court made it clear that defendants were not entitled to a trial on the first appearance date. See Norris, 214 Ill. 2d at 99. Moreover, the majority goes a step further and holds that the dismissal with prejudice is mandatory. This holding is unsupported by the language of the rules and contradicts Norris.
Furthermore, the majority cites to the supreme court for the proposition that supreme court rules are not aspirational and that they are to be obeyed and enforced as written. 397 Ill. App. 3d at 839. However, the Norris court made it clear that Rules 504 and 505 are applied differently than the other supreme court rules when it stated, “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 103.
So, why are these charges dismissed with prejudice?
There was no violation of the double jeopardy clause. See Ill. Const. 1970, art. I, §10. The prohibition against double jeopardy protects against three different abuses: “(1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense.” People v. Sienkiewicz, 208 Ill. 2d 1, 4, 802 N.E.2d 767, 770 (2003). Jeopardy attaches when the jury is empaneled and sworn. People v. Henry, 204 Ill. 2d 267, 283, 789 N.E.2d 274, 284 (2003). Here, defendants’ cases were dismissed based on Supreme Court Rule 504. 166 Ill. 2d R. 504. Jeopardy had not attached.
There was no violation of the defendants’ statutory right to a speedy trial. Each defendant demanded trial and the court heard his motion to dismiss no more than 45 days later. The Illinois Code of Criminal Procedure states:
“(a) Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody ***.
(b) Every person on bail or recognizance shall be tried by the court having jurisdiction within 160 days from the date defendant demands trial ***.” 725 ILCS 5/103—5(a), (b) (West 2008).
Wambsganss’ motion to dismiss was heard 43 days after he demanded trial. Ziobro’s motion was heard 30 days after he demanded trial. Lemoine’s motion was heard 29 days after he demanded trial. So, why are these cases dismissed with prejudice? Because the majority, relying on Rumler, holds that the failure to give defendants a trial on their first appearance constituted “a failure to prosecute.” 397 Ill. App. 3d at 839. While relying on the appellate court in Rumler, the majority ignores the supreme court in Norris.
Defendants’ alleged behavior in these cases poses a serious risk to public safety and should not be treated lightly. It makes no sense to allow a dismissal with prejudice of these serious charges simply because they involve driving a car. A defendant charged with shoplifting a Snickers bar from the local “five and dime” would be afforded no such free pass. Run that one up the flagpole at the next town hall meeting. Demanding strict compliance with Rules 504 and 505 makes sense when dealing with petty offenses. It makes no sense when dealing with serious misdemeanors. The legislature’s decreasing tolerance for impaired drivers is reflected in laws lowering the legal limit for a driver’s blood-alcohol level (Pub. Act 90—43, eff. July 2, 1997 (amending 625 ILCS 5/1—203.1 (West 1996))), and increasing penalties for repeat offenders (Pub. Act 92—248, eff. August 3, 2001 (amending 625 ILCS 5/6—208.1 (West 2000))). Allowing for a dismissal with prejudice in these cases would seriously undermine this crucial public policy and defeat legislative efforts to keep our roads safe. Dismissing these cases with prejudice was an abuse of the trial court’s discretion. For the foregoing reasons, I respectfully dissent.