No. 2--02--0002

_________________________________________________________________

	IN THE

	APPELLATE COURT OF ILLINOIS

	SECOND DISTRICT

_________________________________________________________________

THE PEOPLE OF THE STATE	                                )   Appeal from the Circuit Court

OF ILLINOIS,	                     )   of Du Page County.

	)

	Plaintiff-Appellant,	)

	)

v.	                   )   No. 01--CF--2289

	)

DONALD R. MANN,	            )   Honorable

	                       )   Kathryn E. Creswell,

	Defendant-Appellee.	                    )   Judge, Presiding.

_________________________________________________________________

	JUSTICE KAPALA delivered the opinion of the court:

	The State appeals from an order of the circuit court of Du

Page County dismissing the indictment filed in this cause.  For the

reasons that follow, we reverse and remand.

	On July 13, 1996, defendant, Donald R. Mann, was charged with

various traffic offenses by the issuance of four Illinois citation

and complaint forms.  One of those complaints alleged that on that

same date he committed the Class A misdemeanor offense of driving

while license revoked (625 ILCS 5/6--303(a) (West 1996)). 

Defendant signed an individual bond and was required to appear in

court on August 20, 1996.

	After defendant failed to appear in court on several dates and

was arrested several times on bench warrants, the trial court, on

May 22, 2001, granted the State's motion to nol-pros the Illinois citation and complaints, allowing the State to enhance the driving-

while-license-revoked charge to a felony.

	On August 9, 2001, the grand jury returned an indictment

charging defendant with the felony offense of aggravated driving

while license revoked (625 ILCS 5/6--303(d) (West 1996)) alleging:

	"[O]n or about the 13th day of July 1996 at and within Du Page

County, Illinois, Donald R. Mann committed the offense of

Aggravated Driving While License Revoked in that said

defendant drove or was in actual physical control of a motor

vehicle on a highway in Illinois, at a time when his driver's

license, permit, or privilege to operate a motor vehicle was

revoked pursuant to a violation of 625 ILCS 5/11--501, the

defendant having been previously convicted of Driving While

License Revoked in violation of 625 ILCS 5/6--303, the

original revocation being based upon the defendant's

conviction for a violation of 625 ILCS 5/11--501, and a

prosecution was pending against this defendant for the same

conduct from July 13, 1996[,] to May 22, 2001[,] which period

is excluded from the applicable limitation under 720 ILCS

5/3--7(c)***."

	Defendant filed a motion to dismiss the indictment on the

ground that the State failed to file the indictment within three

years of the date of the offense, thereby barring the prosecution

under the applicable limitations period (720 ILCS 5/3--5(b) (West

1996)).  At the hearing on defendant's motion, the assistant

State's Attorney argued that the misdemeanor driving-while-license-

revoked charge was a prosecution "pending against defendant for the same conduct" as was alleged in the indictment and, therefore, the

period of time from July 13, 1996, until May 22, 2001, was excluded

from the three-year statute of limitations pursuant to section

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

5/3--7(c) (West 1996)).  In response, defense counsel took the

position that the criminal proceeding on a misdemeanor charge

pursuant to the filing of an Illinois citation and complaint did

not constitute "a prosecution" as that term is used in section 3--

7(c).   

	In ruling on defendant's motion to dismiss the indictment, the

trial court stated:

		"It really comes down to a situation where there was a

misdemeanor traffic charge pending by way of complaint which

is certainly sufficient for a misdemeanor.  But the issue is

whether or not that is a prosecution pending since the

defendant is now charged with a felony offense.

		I find that it is not the same offense.  There are

additional elements required for purposes of the felony. 

Although that's presented at sentencing, it's not the same

offense for purposes of the prosecution pending.

		So for that reason, I find that the prosecution was not

commenced within the applicable statute of limitations period

and the motion to dismiss will be granted."

The State timely appeals from that order pursuant to Supreme Court

Rule 604(a)(1).  188 Ill. 2d R. 604(a)(1).

	As a preliminary matter, we take up the State's motion to

supplement the record on appeal with the common law record in the misdemeanor proceeding and with the affidavit of the assistant

State's Attorney who handled this cause in the trial court. 

Defendant filed an objection to the State's motion, contending that

the common law record in the misdemeanor proceeding and the

prosecutor's affidavit are not part of the record in this cause. 

We ordered that the motion be taken with the case and now grant the

State's motion to supplement the record with the common law record

in the misdemeanor proceeding, and deny the motion to supplement

the record with the prosecutor's affidavit.  

	The State's motion regarding the common law record in the

misdemeanor proceeding is granted as to the pertinent facts

contained therein because it is proper for this court to judicially

notice that court file even though the trial court did not formally

do so.  A reviewing court may judicially notice factual evidence

where the facts are capable of immediate and accurate demonstration

by resort to easily accessible sources of indisputable accuracy.  Vulcan Materials Co. v. Bee Construction, 96 Ill. 2d 159, 166 (1983); People v. Davis, 65 Ill. 2d 157, 161-65 (1976).  When and how defendant was charged, his failure to appear in court, his

arrests on bench warrants, and when the State's motion to nol-pros

was granted are pertinent matters contained in the common law

record of the underlying misdemeanor proceeding.  These matters are

capable of immediate and accurate demonstration by resort to an easily accessible source of indisputable accuracy.   Our judicial

notice of these pertinent facts from the common law record in the

misdemeanor proceeding is also appropriate because the State, the

trial court, and defendant all assumed them to be true at the hearing on defendant's motion to dismiss the indictment, and

defendant has not denied that these facts are true in this court. 

See Midway Tobacco Co. v. Mahin, 42 Ill. App. 3d 797, 811 (1976).  The State's motion to supplement the record on appeal with the

prosecutor's affidavit is denied because, ordinarily, an attorney's

affidavit cannot be used to supplement the record on appeal.  Silny v. Lorens, 73 Ill. App. 3d 638, 642-43 (1979).

	Because the trial court's dismissal of the indictment on

statute of limitations grounds in this case raises a purely legal

issue, we review de novo the trial court's rulings.  People v. Blankschein, 337 Ill. App. 3d 526, 529 (2003).  Generally, a prosecution for a felony must be commenced within three years after

the commission of the offense.  720 ILCS 5/3--5(b) (West 1996). 

Where an indictment facially shows that an offense was not

committed within the applicable statute of limitations, it becomes

an element of the State's case to allege and prove the existence of

facts that invoke an exception to the limitations period.  People v. Morris, 135 Ill. 2d 540, 546 (1990).  Section 3--7 excludes certain periods of time from the applicable statute of limitations

and 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."  720 ILCS

5/3--7 (West 1996).

	On appeal the State contends that the trial court erred in

dismissing the indictment, arguing that the conduct alleged in the

misdemeanor complaint is the same conduct alleged in the felony

indictment and, therefore, for purposes of section 3--7(c), a

prosecution was pending against defendant from July 13, 1996, until

May 22, 2001.  Accordingly, the State concludes that this period of

time is properly excluded from the three-year limitations period

pursuant to section 3--7(c).  

	Defendant does not contend that the State failed to

specifically allege in the indictment the existence of facts that

invoke the section 3--7(c) exclusion, but responds with three

arguments in support of affirming the trial court's order: (1) that

the State failed to comply with the compulsory joinder provision of

section 3--3(b) of the Criminal Code (720 ILCS 5/3--3(b) (West

1996)); (2) that in order to exclude time from the applicable

limitations period pursuant to section 3--7(c), the prior criminal

proceeding cannot be initiated by a complaint; and (3) that section

3--7(c) was not applicable in this case because the indictment

added elements to the misdemeanor charge and, therefore, the

misdemeanor proceeding did not involve the "same conduct" as was

alleged in the indictment.

	Defendant's first argument questions the State's failure in

1996 to join the misdemeanor and the felony driving-while-license-

revoked charges pursuant to the compulsory joinder requirements of

section 3--3(b).  Defendant contends that section 3--3(b) bars the State from pursuing the felony charge because it was not joined

with the misdemeanor proceedings.

	Section 3--3 provides in pertinent part:

		"§3--3.  Multiple Prosecutions for Same Act.  (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, except as provided in

Subsection (c), if they are based on the same act."  720 ILCS

5/3--3(a), (b) (West 1996).

This section is not applicable in this case.  Section 3--3 does not

require the State to charge a defendant, at the time of commencing a criminal proceeding, with all known offenses arising out of the

same conduct or be barred from filing additional charges in that

same proceeding.  The purpose of section 3--3 is to prevent

successive prosecutions for multiple offenses arising from a single

act.  People v. Davis, 328 Ill. App. 3d 411, 414 (2002).  In this case we are not dealing with a successive prosecution.  Rather, the

parties are in the midst of an ongoing prosecution.  A prosecution

commences with the filing of a charging document and ends with the

final disposition of the case on appeal (see 720 ILCS 5/2--16 (West

1996)).  Consequently, as the initial prosecution for aggravated

driving while license revoked has not been completed, there is no

successive prosecution to be barred.

	Defendant's second argument addresses what type of prosecution

must have been previously pending against defendant in order to

exclude, pursuant to section 3--7(c), that period of time from the

limitations period on a subsequent charge.   Defendant contends

that, in order to exclude time from the limitations period

applicable to the felony charge, section 3--7(c) proscribes that

the prior prosecution cannot be a criminal proceeding initiated by

a complaint.  The State disagrees, arguing that while it was

pending, the prior misdemeanor proceeding tolled the limitations

period for initiating the felony prosecution.  We agree with the

State.

	In support of his contention, defendant points out that the

Criminal Code defines  "prosecution" as "all legal proceedings by

which a person's liability for an offense is determined, commencing

with the return of the indictment or the issuance of the

information, and including the final disposition of the case upon

appeal."  720 ILCS 5/2--16 (West 1996).  Defendant argues that

because the definition of "prosecution" omits the term "complaint,"

the reference to "prosecution" in section 3--7(c) would not include

a criminal proceeding commenced by a complaint.  Defendant submits,

therefore, that in the instant case the period during which

misdemeanor proceedings were pending pursuant to an Illinois

citation and complaint would not be excluded under section 3--7(c)

from the limitations period applicable to the felony offense of

aggravated driving while license revoked.

	The State directs our attention to People v. Robins, 33 Ill. App. 3d 634 (1975), wherein the Fourth District held that the statutory definition of "prosecution" must be read to include those

legal proceedings that are initiated with a complaint.  The court

in Robins observed that while section 2--16 of the Criminal Code does not mention "complaint" in its definition of "prosecution",

section 111--1 of the Code of Criminal Procedure of 1963 (Code of

Criminal Procedure) provides:

		"Methods of prosecution.

		When authorized by law a prosecution may be commenced by:

		(a) A complaint;

		(b) An information;

		(C) An indictment." (Emphasis added.)  725 ILCS 5/111--1

(West 1996).

	It is also worth noting that the definition of "prosecution"

in section 2--16 includes "all legal proceedings by which a person's liability for an offense is determined."  (Emphasis added.)  720 ILCS 5/2--16 (West 1996).  "Offense" is defined as "a

violation of any penal statute of this State" (emphasis added) (720 ILCS 5/2--12 (West 1996)), which would certainly include a

misdemeanor.  By incorporating the term "offense" in the definition

of "prosecution," section 2--16 necessarily contemplates that a

prosecution includes a criminal proceeding on a misdemeanor

complaint.  See 725 ILCS 5/111--2(b) (West 1996) (providing that

all nonfelony prosecutions may be by indictment, information or

complaint.)

  	Therefore, in view of these statutory provisions we, like the court in Robins, conclude that the statutory definition of "prosecution" must be read to include criminal proceedings

commenced with a complaint.  See Robins, 33 Ill. App. 3d at 637.

	In support of his position, defendant cites People v. Herndon, 105 Ill. App. 3d 167 (1982).  The defendant in Herndon was charged on April 25, 1980, by a complaint with a felony theft alleged to

have occurred from June 1976 through June 1977.  Herndon, 105 Ill. App. 3d at 168.  On July 7, 1980, an indictment was returned

charging the defendant with the same offense alleged in the

complaint.  Herndon, 105 Ill. App. 3d at 168.  The trial court granted the defendant's motion to dismiss the indictment on the

ground that the prosecution was not commenced within the applicable

three-year limitations period.  Herndon, 105 Ill. App. 3d at 168.  On appeal, the State contended, inter alia, that the limitations period was tolled pursuant to section 3--7(c) by the filing of the

complaint in April 1980 and, therefore, the indictment filed on

July 7, 1980, was within the three-year statute of limitations. 

Herndon, 105 Ill. App. 3d at 169.  The reviewing court rejected this contention, concluding that a felony prosecution cannot be

commenced with a complaint and, therefore, no prosecution was

pending until the July 7, 1980 indictment was filed.  Herndon, 105 Ill. App. 3d at 169.  The reviewing court in Herndon did not discuss the holding in Robins that the statutory definition of "prosecution" must be read to include the word "complaint." 

Rather, Herndon distinguished Robins on the basis that the prosecution in question in that case involved a misdemeanor and not

a felony.  Herndon, 105 Ill. App. 3d at 168.  In sum, Herndon says that for purposes of section 3--7(c), a prosecution for a felony is commenced by an indictment or an information.  Herndon does not say a criminal proceeding commenced by a complaint is not a

prosecution.

	Adopting defendant's interpretation of section 2--16 would

bring us to the absurd conclusion that there is no such thing as a

prosecution for a charge initiated by a complaint.  We must

interpret statutes in a manner that avoids absurd results.  Burger v. Lutheran General Hospital, 198 Ill. 2d 21, 59 (2001). Accordingly, we hold that in this case from July 13, 1996, until

May 22, 2001, there was a "prosecution pending against defendant"

within the meaning of section 3--7(c).  

	Our conclusion is not inconsistent with our holding in People v. Gwinn, 255 Ill. App. 3d 628 (1994).  In Gwinn the State filed a complaint on April 13, 1988, alleging that the defendant committed

felony retail theft.  Gwinn, 255 Ill. App. 3d at 630.  The defendant failed to appear in court and a warrant was issued for

his arrest.  Gwinn, 255 Ill. App. 3d at 630.  The defendant was arrested on January 28, 1992, and the State filed an information on

February 19, 1992.  Thereafter, the defendant was found guilty. 

Gwinn, 255 Ill. App. 3d at 630.  On appeal, then  defendant claimed that, because the information failed to allege that the offense

occurred within the applicable limitations period and failed to

plead an exception to the statute of limitations, his conviction

must be reversed.  Gwinn, 255 Ill. App. 3d at 630-31.  This court held that because the defendant did not raise the statute of

limitations issue before the trial court, the issue was waived on

appeal.  Gwinn, 255 Ill. App. 3d at 631.  We did, however, agree with the defendant's contention that he was deprived of the

effective assistance of counsel due to defense counsel's failure to

file a motion to dismiss the information on statute of limitations

grounds.  Gwinn, 255 Ill. App. 3d at 632.  In discussing the prejudice prong of the ineffective assistance of counsel analysis,

we said:

		"The State's reliance on subsection (c) of the tolling

provision [citation] is wholly misplaced.  That provision

tolls the running of the limitations period for the time in

which a prosecution is pending against the defendant for the

same conduct, even if the charging instrument that initiated

the prosecution is later found to be invalid or the

proceedings on that instrument are set aside or reversed on

appeal.  There was no prosecution pending against the

defendant here, however, until the State filed the information

on February 19, 1992.  See Ill. Rev. Stat. 1991, ch. 38, par.

111--2(a) (now 725 ILCS 5/111--2(a) (West 1992)) (all

prosecutions of felonies shall be by information or by

indictment)."  Gwinn, 255 Ill. App. 3d at 633.

In Gwinn we recognized for purposes of section 3--7(c) that a complaint alleging a felony initiates no prosecution whatsoever. 

See Herndon, 105 Ill. App. 3d at 169 (holding the same).  We therefore held that there was no prosecution pending against the

defendant that would exclude time pursuant to section 3--7(c) from

the limitations period.  In Gwinn we did not address whether a misdemeanor complaint pending against a defendant for the same

conduct as alleged in a subsequently charged felony could exclude time under section 3--7(c) from the limitations period applicable

to that felony charge.

	Defendant's third argument centers on whether the misdemeanor

prosecution for driving while license revoked was for the "same

conduct" as the aggravated driving while license revoked charge

alleged in the indictment.  Defendant claims that section 3--7(c)

was not invoked by the misdemeanor charge because the felony charge

included the additional elements of (1) having previously been

convicted of driving while license revoked and (2) the original

revocation having been based upon defendant's conviction of DUI. 

Therefore, defendant concludes that the conduct involved in the

misdemeanor charge is different from the conduct that gave rise to

the felony charge.  We disagree.

	Section 3--7(c) does not require that the prosecution pending

against the defendant contain the same elements but, rather, that

the prosecution pending against the defendant be for the same

conduct.  720 ILCS 5/3--7(c) (West 1996).  As our supreme court

pointed out in Morris, "conduct" is defined by the Criminal Code as " 'an act or a series of acts, and the accompanying mental

state.' "  (Emphasis omitted.)  Morris, 135 Ill. 2d at 545-46, quoting Ill. Rev. Stat. 1987, ch. 38, par. 2--4; see 720 ILCS 5/2--

4 (West 1996).  In this case, the act alleged in the misdemeanor

complaint is that defendant drove a motor vehicle on a highway of

this state on July 13, 1996, when his license to operate a motor

vehicle was revoked.  This is the same act alleged in the

indictment charging defendant with the felony offense of aggravated

driving while license revoked.  Under both the felony and the misdemeanor driving-while-license-revoked charges, the conduct is

the same.  The distinction is that the felony charge merely adds

allegations regarding defendant's previous driving record as of the

time of his conduct.  Accordingly, from July 13, 1996, until May

22, 2001, there was "[a] prosecution *** pending against the

defendant for the same conduct" (720 ILCS 5/3--7(c) (West 1996))

that is the basis for the felony aggravated-driving-while-license-

revoked charge alleged in the indictment.  Therefore, the period of

time when the misdemeanor charge was pending against defendant is

properly excluded from the three-year limitations period applicable

to the felony charge.  Consequently, the trial court erred in

dismissing the indictment on the ground that it was filed outside

the applicable statute of limitations.

	For the foregoing reasons, we reverse the circuit court's

order dismissing the indictment and remand the cause for further

proceedings.

	Reversed and remanded.

	McLAREN and O'MALLEY, JJ., concur.