Kane County Nuggets

Internal education and training for the Kane County State's Attorney's Office.

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Residential Burglary Is Charged Wrong Leading To Reversal

October 27, 2022 By Samuel Partida, Jr.

People v. Acklin, 2020 IL App (4th) 180588 (October). Episode 829 (Duration 7:08)

Defendant had permission to enter the residence but did not have authority to remain within it.

[Read more…]

Filed Under: Burglary, Indictment

The Roadmap To Properly Charging Failure To Register As A Sex Offender (SORA) Cases

August 5, 2022 By Samuel Partida, Jr.

People v. Sweigart, 2021 IL App (2d) 180543 (February). Episode 807 (Duration 13:37)

The language in the charging instrument effects exactly what the state does and does not have to prove in a SORA violation case.

[Read more…]

Filed Under: Indictment, SORA

What Is A Summons?

March 27, 2020 By Samuel Partida, Jr.

In Illinois a summons is the official way a court notifies you that a case has been started against you.

[Read more…]

Filed Under: Indictment, Notice Requirement

Illinois Domestic Battery Penalties And Punishment

February 21, 2020 By Samuel Partida, Jr.

In Illinois the domestic battery statute says,

720 ILCS 5/12-3.2 – Illinois Domestic Battery Charge

“A person commits domestic battery if he or she knowingly without legal justification by any means:

[Read more…]

Filed Under: Indictment

What To Do About Fatally Flawed Criminal Charges: Alan Downen Interview

October 8, 2019 By Samuel Partida, Jr.

People v. Rowell, 229 Ill. 2nd 82 (May 2008). Episode 686 (Duration 31:58)

What’s the best way to handle legally insufficient criminal charges? In this episode you get a feel for what it’s like working in the criminal law. [Read more…]

Filed Under: Dismissal, Indictment

What To Do About Fatally Flawed Criminal Charges: Alan Downen Interview

October 1, 2019 By Samuel Partida, Jr.

People v. Rowell, 229 Ill. 2nd 82 (May 2008). Episode 686 (Duration 31:58)

What’s the best way to handle legally insufficient criminal charges? In this episode you get a feel for what it’s like working in the criminal law.

[Read more…]

Filed Under: Dismissal, Indictment, Podcast

How Criminal Cases Are Charged In Illinois

September 14, 2019 By Samuel Partida, Jr.

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.

“A complaint shall be sworn to and signed by the complainant; provided, that when a peace officer observes the commission of a misdemeanor and is the complaining witness, the signing of the complaint by the peace officer is sufficient to charge the defendant with the commission of the offense, and the complaint need not be sworn to if the officer signing the complaint certifies that the statements set forth in the complaint are true and correct and are subject to the penalties provided by law for false certification under Section 1-109 of the Code of Civil Procedure and perjury under Section 32-2 of the Criminal Code of 2012. ” – 725 ILCS 5/111-3(b)

Felonies Are Brought By Indictment or Information

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

“An indictment shall be signed by the foreman of the Grand Jury and an information shall be signed by the State’s Attorney and sworn to by him or another.” – 725 ILCS 5/111-3(b)

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:

(a) A charge shall be in writing and allege the commission of an offense by:
(1) Stating the name of the offense;
(2) Citing the statutory provision alleged to have been violated;
(3) Setting forth the nature and elements of the offense charged;
(4) Stating the date and county of the offense as definitely as can be done; and
(5) Stating the name of the accused, if known, and if not known, designate the accused by any name or description by which he can be identified with reasonable certainty.

Victim Must Be Named

Additionally, section (a-5) says,

If the victim is alleged to have been subjected to an offense involving an illegal sexual act including, but not limited to, a sexual offense defined in Article 11 or Section 10-9 of the Criminal Code of 2012, the charge shall state the identity of the victim by name, initials, or description. – 720 ILCS 5/111-3(a-5).

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:

“(a) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. (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 *** if they are based on the same act.”

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:

“When the State seeks an enhanced sentence because of a prior conviction, the charge shall also state the intention to seek an enhanced sentence and shall state such prior conviction so as to give notice to the defendant. However, 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. For the purposes of this Section, “enhanced sentence” means a sentence which is increased by a prior conviction from one classification of offense to another higher level classification of offense set forth in Section 5-4.5-10 of the Unified Code of Corrections (730 ILCS 5/5-4.5-10); it does not include an increase in the sentence applied within the same level of classification of offense.”

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)

Filed Under: Indictment

Other Crimes Evidence In A Sex Case Can’t Touch Basic Joinder Rules

January 8, 2018 By Samuel Partida, Jr.

People v. Hayden, 2018 IL App (4th) 160035 (December). Episode 577 (Duration 7:14)

Predatory reversed due to non severance of the charges. [Read more…]

Filed Under: 115-10, Indictment

Procedure For Filing A Motion To Dismiss When The Charging Instrument Is Insufficient

October 4, 2017 By Samuel Partida, Jr.

People v. Frazier, 2017 IL App (5th) 140493 (July). Episode 399 (Duration 6:44)

No error here where defense counsel waited to object to an insufficient complaint until after the trial started. [Read more…]

Filed Under: Indictment

Careful And Artful Charging Decision Cannot Contravene Compulsory Joinder

July 19, 2017 By Samuel Partida, Jr.

People v. Smith, 2017 IL App (1st) 161231 (May). Episode 365 (Duration 5:38)

Although artful and creative state can’t avoid compulsory joinder requirements with careful charging decision. [Read more…]

Filed Under: Indictment

Originally Charged With Second Degree Murder, Then Amended To First Degree Murder, Problem?

November 22, 2016 By Samuel Partida, Jr.

People v. Staake, 2016 IL App (4th) 140638 (November). Episode 260 (Duration 9:52)

Second degree murder is not a lesser included offense of first degree murder; it is a lesser mitigated offense of first degree murder. [Read more…]

Filed Under: Indictment, Second Degree Murder

This Felony Murder Indictment Was Fatally Flawed And Charges Had To Be Dismissed

September 19, 2016 By Samuel Partida, Jr.

People v. Carey, 2016 IL App (1st) 131944 (August). Episode 228 (Duration 7:35)

Felony murder indictment failed to specify which predicate offense his felony murder was based on, conviction reversed. [Read more…]

Filed Under: Dismissal, Felony Murder, Indictment

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