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No. 3--02--0248

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2002

On December 15, 2001, state trooper Danny R. Leezer arresteddefendant for DUI and issued a uniform citation and complaintrequiring him to appear in court at 9 a.m. on "January 23, 2001." Defendant was transported to the McDonough County jail, where hewas subsequently released on bond and again given notice toappear in court at 9 a.m. on "January 23, 2001." On December 21,2001, Attorney John A. Carter entered his appearance ondefendant's behalf.

On February 15, 2002, defendant filed a motion to dismissbased on Leezer's failure to set a date for defendant's firstcourt appearance pursuant to Supreme Court Rule 504 (166 Ill. 2dR. 504) within 14 to 60 days after defendant's arrest. At thehearing on the motion, the following facts were established. Defendant did not request the 2001 first appearance date, andneither defendant nor his attorney appeared in court onJanuary 23, 2002. It was not impracticable for Leezer to havescheduled defendant's first appearance within the time limits ofRule 504. In fact, he intended to set the appearance date forJanuary 23, 2002, not 2001. Likewise, the corrections officerwho issued the bail bond intended defendant's appearance date tobe January 23, 2002.

Based on the foregoing undisputed facts, the trial courtgranted defendant's motion to dismiss the DUI charge.

On appeal, the State contends that the trial court abusedits discretion because the time limitation of Rule 504 isdirectory and because defendant was not prejudiced by the obviousscrivener's error. In response, defendant argues that where anerror in setting an impossible first appearance date was causedby the State without any bad faith on the part of the defendant,the court does not abuse its discretion by granting a dismissalof the charge.

Supreme Court Rule 504 governs the setting of a defendant'sfirst appearance date in traffic cases. The rule provides that"[t]he date set by the arresting officer *** for an accused'sfirst appearance in court shall be not less than 14 days butwithin 60 days after the date of the arrest, wheneverpracticable." 166 Ill. 2d R. 504. Rule 504's time limitation isdirectory, not mandatory. Village of Park Forest v. Fagan, 64Ill. 2d 264, 356 N.E.2d 59 (1976). Therefore, if the arrestingofficer sets a first appearance date outside the period providedby the rule, the trial court is not required to dismiss thecharge for lack of jurisdiction. Fagan, 64 Ill. 2d 264, 356N.E.2d 59. However, the State bears the burden in suchsituations of establishing that it was impracticable to complywith the rule's time limitation. Fagan, 64 Ill. 2d 264, 356N.E.2d 59.

In determining if it was practicable to set the firstappearance date within the prescribed 14- to 60-day period,neither the arresting officer's intent nor prejudice to thedefendant is relevant. People v. Alfonso, 191 Ill. App. 3d 963,548 N.E.2d 452 (1989). If the trial court determines that it wasnot impracticable to set the date within the rule's timelimitation, the court's dismissal of charges will not bedisturbed on review absent an abuse of discretion. Alfonso, 191Ill. App. 3d 963, 548 N.E.2d 542.

Here, it is readily apparent that both the arresting officerand the corrections officer committed "scrivener's errors" insetting an impossible first appearance date for defendant. It isalso uncontested that defendant did nothing to cause the errors. Clearly, defendant was not obliged to guess what date theofficers truly intended for him to appear in court or to bringthe officers' errors to the court's attention before seeking adismissal of the charge.

The State's arguments that the officers' errors wereunintended and "technical" (see Alfonso, 191 Ill. App. 3d 963,548 N.E.2d 452) and that the limitation period is directory, notmandatory, miss the point. The plain language of the ruleprovides that the setting of a first appearance date outside theprescribed period of Rule 504 is excusable only upon evidence ofthe impracticability of setting the date within the prescribedperiod. See Alfonso, 191 Ill. App. 3d 963, 548 N.E.2d 542. Inthis case, the State presented no such evidence. We further notethe lack of any showing that a correction of the erroneous courtdate could not have been initiated by the State prior to February13, 2002, when the period prescribed by Rule 504 expired. Fromthe record on review, it appears that the prosecution took noaction in the cause until after defendant filed his motion todismiss.

In sum, the State does not dispute that it was "notimpracticable" for the State to set a first appearance date fordefendant within the 14- to 60-day of Rule 504. Accordingly, thetrial court's order of dismissal was not an abuse of itsdiscretion. See Alfonso, 191 Ill. App. 3d 963, 548 N.E.2d 542.

The judgment of the circuit court of McDonough County isaffirmed.

Affirmed.

McDADE and SLATER, JJ., concur.