The Charging Instrument in Illinois

In Illinois there are 3 type of charging instruments.

• Complaint
• Indictment
• Information

See 725 ILCS 5/111-1. Go here for more criminal law foundations.

The Misdemeanor Complaint In Illinois

Criminal misdemeanors are brought by a complaint. In Illinois there are 3 levels of criminal misdemeanors. They are:

Class	Penalty Range	Maximum Fine
A	less than 1 year	not to exceed $2,500
B	not more than 6 mths	not to exceed $1,500
C	not more than 30 days	not to exceed $1,500

For a misdemeanor the complaint starts the process.

Felonies Are Brought By Indictment or Information

Felony charges are brought forward in Illinois either by indictment or information.

Both require that probable cause for the crime be established. The difference is that in an indictment the probable cause if brought forth in a closed proceeding before a grand jury. The information is proved up in open court with witnesses. See 725 ILCS 5/111-2 and 725 ILCS 5/112-1 et seq.

Proper Charge

A defendant has a fundamental right, as set forth in section 111-3 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/111-3), to be informed of the nature and cause of the criminal accusations made against him or her.

Proper Form Of The Charge

725 ILCS 5/111-3 provides that:

Victim Must Be Named

Additionally, section (a-5) says,

Where an indictment or information charges an offense against persons or property, as here, “the name of the person or property injured, if known, must be stated [in the charging instrument], and the allegation must be proved as alleged.” People v. Jones, 53 Ill. 2d 460, 463 (1973) (quoting People v. Walker, 7 Ill. 2d 158, 161 (1955)).

Defendant’s Right

A defendant has a fundamental right, as set forth in section 111–3 of the Code, to be informed of the nature and cause of criminal accusations made against him. “If the indictment or information does not strictly comply with the pleading requirements of section 111–3, the proper remedy is dismissal.”  People v. Rowell, 229 Ill. 2d 82, 92-93 (2008).

Personal Crime

In other words, where the impact of the crime is “focused more directly upon an individual victim than upon society generally,” the identity of the individual victim “is an essential allegation of an indictment charging that offense” (Jones, 53 Ill. 2d at 463)), and the failure to identify the victim in the charging instrument renders it deficient.

When Challenge Made

It is well settled that if an indictment or information is challenged before trial in a pretrial motion, the charging instrument must strictly comply with the pleading requirements of section 111-3 of the Code.

If the indictment or information does not strictly comply with the pleading requirements of section 111-3 of the Code, the proper remedy is dismissal.

If, on the other hand, a charging instrument is attacked mid-trial, the applicable standard for a challenge is the prejudice standard.

Compulsory Joinder

The compulsory joinder statute provides:

720 ILCS 5/3-3.

The General Assembly enacted the compulsory joinder statute “to prevent the prosecution of multiple offenses in a piecemeal fashion and to forestall, in effect, abuse of the prosecutorial process. A prosecutor might otherwise harass a defendant through successive prosecutions of multiple offenses and put a defendant through the expense of several trials until the prosecutor obtains a result that satisfies him.” People v. Quigley, 183 Ill. 2d 1, 7 (1998).

Speedy Statute

The speedy trial statute provides that any person who is held in custody on criminal charges must be tried within 120 days. 725 ILCS 5/103-5(a).

The 120-day limitation applies both to charges that have been filed against defendant and charges that have not yet been filed but would be subject to mandatory joinder with the originally filed charges.

Can’t Agree If Not Charged

Generally, the 120-day period under the speedy trial statute can be extended by a delay of trial that is attributable to the defense. 725 ILCS 5/103-5(a).

Delay is attributable to a defendant whenever he agrees to a continuance of trial. People v. Ingram, 357 Ill. App. 3d 228, 232-33 (2005). However, a defendant can only agree to the continuance of trial with respect to offenses with which he is actually charged.

Joinder Applies

Multiple offenses are subject to mandatory joinder when they are all based on the same act by defendant. 720 ILCS 5/3-3(b).

It says:

(b) If the several offenses are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution

The General Assembly enacted the compulsory joinder statute…

“to prevent the prosecution of multiple offenses in a piecemeal fashion and to forestall, in effect, abuse of the prosecutorial process. A prosecutor might otherwise harass a defendant through successive prosecutions of multiple offenses and put a defendant through the expense of several trials until the prosecutor obtains a result that satisfies him.”

Consequently, a defendant held in custody and charged with a single offense must be tried within 120 days not only for that offense but also for any other offenses that could be charged based on the same underlying act.

Must Charge All The Applicable Counts

Put another way, if a defendant is in custody and charged with one offense and agrees to continue his trial, that agreement tolls the 120-day period with respect to the charged offense but does not toll the 120­ day period for any uncharged offenses based on the same act.

Consequently, when a defendant is charged with an offense based on conduct that could support charges of multiple offenses, the State must file any additional charges based on that conduct within 120 days.

Any additional charges filed beyond the 120-day period violate the speedy trial statute. See People v. Williams, 204 Ill. 2d 191, 198 (2003).

This rule does not cover the charges that were based on different acts.

Charging Instruments Also Provide Notice

The whole point of proper charging is to put the accused on notice of exactly what he’s being charged with. See People v. Jameson, 162 Ill. 2d 282, 290 (1994)). The code further expands on this notice requirement with this additional requirement:

720 ILCS 5/111-3(c).

The supreme court then held:

“In construing the language of section 111-3(c), it is clear that the notice provision applies only when the prior conviction  that would enhance the sentence is not already an element of the offense. The language of section 111-3(c) states that ‘the fact of  such prior conviction and the State’s intention to seek an enhanced sentence are not elements of the offense and may not be disclosed to the jury during trial unless otherwise permitted by issues properly raised during such trial.’  This language necessarily implies that section 111-3(c) applies only when the prior conviction is not an element of the offense.”

People v. Easley, 2014 IL 115581, ¶ 19.

Statute of Limitations

The criminal statute of limitations serves two primary purposes:

(1) To avoid the use of stale evidence and
(2) To provide an incentive for swift governmental action in criminal cases.

Limitations are designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past.

Dismissal Is The Remedy

Failure to accurately charge a defendant pursuant to the required statutes may lead to a dismissal of the charges.

How To File A Motion To Dismiss
In A Criminal Case

See also this Handy Guide On Filing A Motion To Dismiss in a criminal case to discover more on this topic.

See Also

Episode 686 – People v. Rowell, 229 Ill. 2nd 82 (May 2008). (Duration 31:58) (What To Do About Fatally Flawed Criminal Charges: Alan Downen Interview)