No. 2--02--0024		

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	IN THE

	APPELLATE COURT OF ILLINOIS

	SECOND DISTRICT

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THE PEOPLE OF THE STATE	)	Appeal from the Circuit Court

OF ILLINOIS,	)	of Du Page County.

		)

	Plaintiff-Appellant,	)

	)	

v.	)	No. 01--CF--213

	)

GENARO PACHECO,	)	Honorable

	)	Kathryn E. Creswell,

	Defendant-Appellee.	)	Judge, Presiding.

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	JUSTICE GROMETER delivered the opinion of the court:

	On January 18, 2001, defendant, Genaro Pacheco, was charged by

indictment in the circuit court of Du Page County with two counts

of aggravated driving under the influence of alcohol (DUI) (625

ILCS 5/11--501(a)(1), (a)(2), (d)(1)(A) (West 1996)) and driving

while his license was revoked (625 ILCS 5/6--303(a), (d) (West

1996)).  The offenses allegedly occurred on August 31, 1996, and

each count of the indictment indicated that a prosecution for the

same conduct had been pending against defendant since 1996. 

Defendant successfully moved to dismiss the charges because they

were barred by the applicable three-year statute of limitations

(720 ILCS 5/3--5(b) (West 1996)).  The State appeals, claiming that

the pending prosecutions described in the indictment tolled the

limitations period.  We affirm.

	Section 3--7 of the Criminal Code of 1961 (Code) (720 ILCS

5/3--7 (West 1996)) provides in pertinent part:

		"The period within which a prosecution must be commenced does not include any period in which:

	* * *

		(c) 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 set aside, or are reversed on appeal."

The record reveals that defendant was charged with misdemeanor DUI

on September 3, 1996.  The offenses charged in the 2001 indictment

are felonies.  In dismissing the felony charges, the trial court

stated:

		"It is my understanding of the case law that although

clearly a misdemeanor prosecution can be commenced by the

filing of a complaint for a felony offense, there has to be an

indictment or an information filed within the statute of

limitations, otherwise, the charging document has to state why 

the statue [sic] of limitations extended.

		In this particular case, I don't find that the

misdemeanor pending stays the pending prosecution for this

offense.

		Specifically, I am finding that the felony offense that

is charged is a separate and distinct offense from that that

was previously pending, that being the misdemeanor."

	Citing People v. Martin, 266 Ill. App. 3d 369 (1994), and People v. Saunders, 235 Ill. App. 3d 661 (1992), the State argues that whether section 3--7(c) of the Code tolls the limitations

period depends on whether the prior prosecution was for the same conduct, not whether the prior prosecution was for a felony or a

misdemeanor.  The State contends that the felony and misdemeanor

charges involved the same conduct.  From that premise, the State

concludes that, while it was pending, the misdemeanor prosecution

tolled the limitations period for initiating a felony prosecution.

	Even assuming for the sake of argument that the State's

premise is correct, its conclusion is not.  Section 3--7(c) is not

self-executing; the State must properly invoke it in the charging

instrument.  People v. Strait, 72 Ill. 2d 503 (1978), cited by defendant, recites "the long-established rule that if the

indictment or information shows on its face that the offense was

not committed within the period of limitations facts must be averred which invoke one of the exceptions contained in the

statute."  (Emphasis added.)  Strait, 72 Ill. 2d at 504-05.   In People v. Morris, 135 Ill. 2d 540 (1990), also cited by defendant, the supreme court modified the rule, concluding that "the State

must not only set forth circumstances which, in and of themselves,

would provide a basis for tolling a limitation period, but the State must make clear that those circumstances are in fact the

basis upon which the State seeks to toll the limitation period."  (Emphasis added.)  Morris, 135 Ill. 2d at 547.  As an example, the court cited People v. Isaacs, 37 Ill. 2d 205 (1967), where the indictment included "specific language to the effect ' "that the

period within which the prosecution must be commenced does not

include [certain dates] in that [certain facts exist which invoke

an exception to the statute of limitations]." ' "  Morris, 135 Ill. 2d at 547, quoting Issacs, 37 Ill. 2d at 230.

	In Morris, the defendant was originally indicted within the limitations period on a single count of indecent liberties with a

child.  After the the limitations period expired, the grand jury added

five more counts charging sex offenses arising from the same

incident as the first count.  The court noted that reading the

indictment as a whole established that "at the time counts II

through VI of the indictment were handed down by the grand jury,

there had been '[a] prosecution *** pending against the defendant

for the same conduct.' "  Morris, 135 Ill. 2d at 546, quoting Ill. Rev. Stat. 1987, ch. 38, par. 3--7(c).  Nonetheless, the court held

that the State had not effectively invoked the tolling provision:

		"The indictment in this case contains no language

specifying that the limitation period should be tolled because

a prosecution was pending against defendant for the same

conduct involved in counts II through VI.  Instead, count I

merely indicates that such a prosecution was pending at the

time counts II through VI were added to the indictment.  Thus,

the State failed to specify either in count I or counts II

through VI the grounds by which it sought to toll the

limitation period, forcing defendant to speculate as to how he

should prepare a defense.  The uncertainty surrounding the

State's basis for tolling the limitation period is apparent

from the record."  Morris, 135 Ill. 2d at 547-48.

Similarly, here the indictment merely indicates that when it was

handed down, a prosecution was pending for the same conduct.  As in

Morris, it does not specify that the State intends to rely on the prosecution as the basis for tolling the statute of limitations. 

Pursuant to Morris, the indictment was properly dismissed.

	For the foregoing reasons, the judgment of the circuit court

of Du Page County is affirmed.

	Affirmed.

	GROMETER, J., with McLAREN and O'MALLEY, JJ., concur.ring.