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On January 18, 2001, defendant, Genaro Pacheco, was charged byindictment in the circuit court of Du Page County with two countsof aggravated driving under the influence of alcohol (DUI) (625ILCS 5/11--501(a)(1), (a)(2), (d)(1)(A) (West 1996)) and drivingwhile his license was revoked (625 ILCS 5/6--303(a), (d) (West1996)). The offenses allegedly occurred on August 31, 1996, andeach count of the indictment indicated that a prosecution for thesame conduct had been pending against defendant since 1996. Defendant successfully moved to dismiss the charges because theywere barred by the applicable three-year statute of limitations(720 ILCS 5/3--5(b) (West 1996)). The State appeals, claiming thatthe pending prosecutions described in the indictment tolled thelimitations period. We affirm.

Section 3--7 of the Criminal Code of 1961 (Code) (720 ILCS5/3--7 (West 1996)) provides in pertinent part:

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

(c) A prosecution is pending against the defendant forthe same conduct, even if the indictment or information whichcommences the prosecution is quashed or the proceedingsthereon set aside, or are reversed on appeal."

The record reveals that defendant was charged with misdemeanor DUIon September 3, 1996. The offenses charged in the 2001 indictmentare felonies. In dismissing the felony charges, the trial courtstated:

"It is my understanding of the case law that althoughclearly a misdemeanor prosecution can be commenced by thefiling of a complaint for a felony offense, there has to be anindictment or an information filed within the statute oflimitations, otherwise, the charging document has to state why the statue [sic] of limitations extended.

In this particular case, I don't find that themisdemeanor pending stays the pending prosecution for thisoffense.

Specifically, I am finding that the felony offense thatis charged is a separate and distinct offense from that thatwas previously pending, that being the misdemeanor."

Citing People v. Martin, 266 Ill. App. 3d 369 (1994), andPeople v. Saunders, 235 Ill. App. 3d 661 (1992), the State arguesthat whether section 3--7(c) of the Code tolls the limitationsperiod depends on whether the prior prosecution was for the sameconduct, not whether the prior prosecution was for a felony or amisdemeanor. The State contends that the felony and misdemeanorcharges involved the same conduct. From that premise, the Stateconcludes that while it was pending, the misdemeanor prosecutiontolled the limitations period for initiating a felony prosecution.

Even assuming for the sake of argument that the State'spremise is correct, its conclusion is not. Section 3--7(c) is notself-executing; the State must properly invoke it in the charginginstrument. People v. Strait, 72 Ill. 2d 503 (1978), cited bydefendant, recites "the long-established rule that if theindictment or information shows on its face that the offense wasnot committed within the period of limitations facts must beaverred which invoke one of the exceptions contained in thestatute." (Emphasis added.) Strait, 72 Ill. 2d at 504-05. InPeople v. Morris, 135 Ill. 2d 540 (1990), also cited by defendant,the supreme court modified the rule, concluding that "the Statemust not only set forth circumstances which, in and of themselves,would provide a basis for tolling a limitation period, but theState must make clear that those circumstances are in fact thebasis upon which the State seeks to toll the limitation period." (Emphasis added.) Morris, 135 Ill. 2d at 547. As an example, thecourt cited People v. Isaacs, 37 Ill. 2d 205 (1967), where theindictment included "specific language to the effect ' "that theperiod within which the prosecution must be commenced does notinclude [certain dates] in that [certain facts exist which invokean 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 thelimitations period on a single count of indecent liberties with achild. After the limitations period expired, the grand jury addedfive more counts charging sex offenses arising from the sameincident as the first count. The court noted that reading theindictment as a whole established that "at the time counts IIthrough VI of the indictment were handed down by the grand jury,there had been '[a] prosecution *** pending against the defendantfor the same conduct.' " Morris, 135 Ill. 2d at 546, quoting Ill.Rev. Stat. 1987, ch. 38, par. 3--7(c). Nonetheless, the court heldthat the State had not effectively invoked the tolling provision:

"The indictment in this case contains no languagespecifying that the limitation period should be tolled becausea prosecution was pending against defendant for the sameconduct involved in counts II through VI. Instead, count Imerely indicates that such a prosecution was pending at thetime counts II through VI were added to the indictment. Thus,the State failed to specify either in count I or counts IIthrough VI the grounds by which it sought to toll thelimitation period, forcing defendant to speculate as to how heshould prepare a defense. The uncertainty surrounding theState's basis for tolling the limitation period is apparentfrom the record." Morris, 135 Ill. 2d at 547-48.

Similarly, here the indictment merely indicates that when it washanded down, a prosecution was pending for the same conduct. As inMorris, it does not specify that the State intends to rely on theprosecution 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 courtof Du Page County is affirmed.

Affirmed.

McLAREN and O'MALLEY, JJ., concur.