People v. Pozniak

2021 IL App (3d) 200506-U

• Court: Appellate Court of Illinois
• Decided: September 22, 2021
• Docket: 3-20-0506
• Status: Unpublished

Opinion

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

2021 IL App (3d) 200506-U

Order filed September 22, 2021 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 14th Judicial Circuit, ) Whiteside County, Illinois. Plaintiff-Appellant, ) ) Appeal No. 3-20-0506 v. ) Circuit No. 08-CF-378 ) JOSEPH POZNIAK, ) ) Honorable Richard A. Zimmer, Defendant-Appellee. ) Judge, Presiding. ____________________________________________________________________________

JUSTICE SCHMIDT delivered the judgment of the court. Justices Holdridge and O’Brien concurred in the judgment.

ORDER

¶1 Held: A finding of a lack of probable cause at a preliminary hearing is not a final and appealable order.

¶2 The State appeals the trial court’s finding that the State failed to establish probable cause

at a preliminary hearing. We dismiss the appeal for lack of jurisdiction.

¶3 I. BACKGROUND ¶4 On September 2, 2008, the State charged defendant by information. Count I alleged

defendant committed aggravated driving under the influence (DUI) (625 ILCS 5/11-501(a),

(d)(1)(A) (West 2008)). That charge was enhanced by defendant’s two prior DUI convictions.

Count II alleged defendant committed aggravated DUI (625 ILCS 5/11-501(a), (d)(1)(G) (West

2008). Count III alleged defendant committed driving while license revoked (625 ILCS 5/6-303(d)

(West 2008). Counts II and III were enhanced because defendant’s license was revoked at the time

and defendant had previously been convicted of driving while his license was revoked or

suspended.

¶5 Defendant posted bond but failed to appear at the subsequent hearing on September 5,

2008. The court issued a warrant for his arrest. On July 15, 2020, defendant was arrested.

¶6 On October 14, 2020, the cause proceeded to a preliminary hearing. At the hearing, the

State did not offer any evidence of defendant’s prior convictions for DUI or driving while license

revoked or suspended. The court noted this. Without such evidence, the court concluded that there

was no probable cause to support a felony offense against defendant.

¶7 The State did not attempt to refile or amend the charges. Instead, the State appeals.

¶8 II. ANALYSIS

¶9 At the outset, we must consider our jurisdiction. During the pendency of the appeal,

defendant filed a motion to dismiss the appeal for lack of jurisdiction. We denied the motion.

Defendant reasserted this argument in his brief. Defendant contends that a finding of a lack of

probable cause at a preliminary hearing is not a final and appealable order. The determination of

whether the appellate court has jurisdiction to consider an appeal is a question of law, which we

review de novo. People v. Shinaul, 2017 IL 120162, ¶ 8.

-2- ¶ 10 The State’s right to appeal is governed by Illinois Supreme Court Rule 604(a)(1), which

provides:

“In criminal cases the State may appeal only from an order or

judgment the substantive effect of which results in dismissing a

charge for any of the grounds enumerated in section 114-1 of the

Code of Criminal Procedure of 1963; arresting judgment because of

a defective indictment, information or complaint; quashing an arrest

or search warrant; or suppressing evidence.” Ill. S. Ct. R. 604(a)(1)

(eff. July 1, 2017).

Section 114-1 of the Code of Criminal Procedure of 1963 does not make a reference to an order

or judgment which finds the State failed to make a showing of probable cause at a preliminary

hearing. Thus, the order appealed from in this case does not come within the express provisions of

Rule 604(a)(1). However, the provisions set forth in section 114-1 are not exclusive. See People

v. Lawson, 67 Ill. 2d 449, 456 (1977). Where the substantive effect of the trial court’s order is

dismissal of the criminal charges against the defendant, the State may appeal the order under Rule

604(a)(1) even if the order does not meet one of the grounds enumerated in section 114-1. See In

the Interest of Pryor, 111 Ill. App. 3d 851, 853 (1982).

¶ 11 Upon review, we conclude that we lack jurisdiction. A finding of a lack of probable cause

is not an acquittal and is not final, as the State may later indict the accused or submit a new

information. People v. Zook, 177 Ill. App. 3d 62, 63 (1988). In other words, a finding of no

probable cause at a preliminary hearing does not, in itself, bar proceeding on a new information

charging the same offenses and with a new preliminary hearing. People v. Overstreet, 64 Ill. App.

3d 287, 289 (1978). Since a preliminary hearing finding does not constitute either a conviction or

-3- an acquittal, a defendant is not placed in jeopardy. People v. Harris, 52 Ill. 2d 558 (1972).

Consequently, under the facts of this case, the State cannot appeal from a finding of no probable

cause at a preliminary hearing. See People v. Kent, 54 Ill. 2d 161, 164 (1972).

¶ 12 In reaching this conclusion, we reject the State’s argument that the finding of no probable

cause had the substantive effect of dismissing the charges. The State notes that it filed the

information in 2008. The State believes it cannot seek a new indictment or information because

more than three years have passed since the date of the offense. See 720 ILCS 5/3-5(b) (West

2020) (prosecution must be commenced within three years after the commission of the offense).

However, the limitation period can be tolled. For example, the limitations period is tolled when “a

prosecution is pending against the defendant for the same conduct, even if the indictment or

information which commences the prosecution is quashed or the proceedings thereon are set aside,

or are reversed on appeal.” 720 ILCS 5/3-7(a)(3) (West 2020). The State did not attempt to refile

or amend the charges. The State has not argued that such an attempt would be futile. We do not

know if such an attempt would be successful. Unless and until the State makes such an attempt,

we are not convinced the order in this case is final and appealable.

¶ 13 III. CONCLUSION

¶ 14 For the foregoing reasons, the appeal is dismissed for lack of jurisdiction.

¶ 15 Appeal dismissed.

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