                           NO. 4-04-0550       Filed: 2/1/06

                      IN THE APPELLATE COURT

                            OF ILLINOIS

                          FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,    ) Appeal from
          Plaintiff-Appellee,           ) Circuit Court of
          v.                            ) Adams County
THAD L. JOHNSON,                        ) No. 03CF430
          Defendant-Appellant.          )
                                        ) Honorable
                                        ) Scott H. Walden,
                                        ) Judge Presiding.
_________________________________________________________________

           JUSTICE McCULLOUGH delivered the opinion of the court:

           In September 2003, the State charged defendant, Thad L.

Johnson, and a codefendant by information with unlawful posses-

sion of a controlled substance.   720 ILCS 570/402(c) (West 2002).

 The information alleged they both unlawfully possessed less than

five grams of a substance containing methamphetamine.

           On November 20, 2003, defendant filed a motion to

suppress evidence and quash his arrest, alleging the stop,

detention, and search of defendant were illegal.   The trial court

set a hearing on defendant's motion for December 19, 2003, but

continued it until January 9, 2004 (the date of trial), upon the

State's request due to the unavailability of witnesses.   A joint

proceeding on defendant's motion to suppress, codefendant's

motion to suppress, and both defendant's and codefendant's bench

trials was held.   Both defendant and codefendant testified but

only in regard to their motions to suppress, not on the issue of

guilt.   The court denied the motions to suppress and found both

defendants guilty.   On April 14, 2004, the trial court sentenced
defendant to 24 months' probation.       On appeal, defendant argues

the trial court did not have the authority to hold a joint

suppression hearing and bench trial and thus "the order denying

the motion is void and a nullity."       Defendant further contends

that since the conviction was based on evidence that was the

subject of the motion to suppress, the conviction is also a

nullity.   We affirm.

           The following exchange occurred at the beginning of the

January 9, 2004, proceeding:
                  "THE COURT: The cause was originally

           scheduled for hearing on [m]otion to

           [s]uppress which both defendant's [sic] have

           now filed.

                  It is my understanding the parties are

           wishing to expand the scope of today's hear-

           ing.   Is that correct?

                  MR. FARHA [(prosecutor)]: Your Honor, it

           is my understanding--and the People are will-

           ing to do so.   I think, first of all, both

           defendants would be willing to enter into

           waivers of right to jury trial; we would

           proceed with a trial simultaneously with both

           defendants.   There is [sic] not any mutually
           exclusive defenses that would have reason to

           cause a severance.   It is also my understand-

           ing we would proceed also at the same time on


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the [m]otion to [s]uppress.      The People would

present testimony.    Even though we do not

have the burden, we would go forward, and we

have our witnesses here.      There was a state-

ment made by Ms. Anderson as to ownership of

a purse where some of the evidence was found.

 I don't believe the motion entails suppress-

ing the statement per se other than question-

ing the stop and legality of the contact with
the police.

     THE COURT: I assume though, if the

[m]otion to [s]uppress were granted with

respect--

     MR. FARHA: Yes, Your Honor.

     THE COURT:    --the stuff, that would also

apply to the statements.
     MR. FARHA: Yes, Your Honor.      But I don't

think it was specifically addressed toward

the statement.

     THE COURT: Correct, Mr. Downey?

     MR. DOWNEY [(defense counsel)]: Judge,

it is correct.    And we're going to tender to

the [c]ourt a waiver of jury by my client,

Thad Johnson.    Since this is going to be a

joint [t]rial/[m]otion to [s]uppress, the

State is going to introduce evidence; we are


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           not going to object every time.     They have to

           present evidence in order to present their

           case.

                   THE COURT: So, we'll note a continuing

           objection.

                   MR: DOWNEY: Note a continuing objection

           so as not to interrupt the proceeding."

           The State presented its witnesses.     Then defendant and

codefendant both testified but only for purposes of the suppres-
sion hearing.   The trial court heard arguments on defendant's and

codefendant's respective motions to suppress and denied the

motions.

           On January 15, 2004, following arguments on the issue

of guilt or innocence, the trial court found codefendant guilty

and took the matter of defendant's guilt under advisement.

           In a written order, file-stamped January 20, 2004, the
trial court found defendant guilty.       The court stated it did not

consider defendant's or codefendant's testimony at the hearing on

their motions to suppress as evidence in defendant's bench trial

and that this was possible because it was a bench trial, not a

jury trial.   The court sentenced defendant as stated and this

appeal followed.

           Defendant argues the standard of review is de novo.

The State does not dispute this.

           Section 114-12 of the Code of Criminal Procedure of

1963 (Code) (725 ILCS 5/114-12 (West 2002)) governs motions to


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suppress illegally seized evidence.      We note section 114-12 is

silent on the issue of when a hearing on a pretrial motion to

suppress must be held, but it does state the following, in

pertinent part:

                  "The motion shall be made before trial

          unless opportunity therefor did not exist or

          the defendant was not aware of the grounds

          for the motion.    If the motion is made during

          trial, and the court determines that the
          motion is not untimely, and the court con-

          ducts a hearing on the merits and enters an

          order suppressing the evidence, the court

          shall terminate the trial with respect to

          every defendant who was a party to the hear-

          ing and who was within the scope of the order

          of suppression, without further proceedings,
          unless the State files a written notice that

          there will be no interlocutory appeal from

          such order of suppression."     725 ILCS 5/114-

          12(c) (West 2002).

          Although no statute sets forth when a hearing on a

motion to suppress filed before trial must take place, defendant

claims People v. Flatt, 82 Ill. 2d 250, 412 N.E.2d 509 (1980),

and People v. Pugh, 133 Ill. App. 2d 168, 272 N.E.2d 742 (1971),

support his argument that the trial court did not have authority

to hold the suppression hearing at the same time as trial.


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           In Pugh, defendant made a motion to suppress a weapon

that had been removed from the cab in which he had been riding.

Pugh, 133 Ill. App. 2d at 168, 272 N.E.2d at 743.     Defendant

indicated he would plead not guilty and waive his right to a jury

trial.   Pugh, 133 Ill. App. 2d at 168, 272 N.E.2d at 743.    The

trial court then stated the hearing on the motion would be

conducted simultaneously with the trial.     Pugh, 133 Ill. App. 2d

at 168, 272 N.E.2d at 743.   Defense counsel objected and re-

quested a ruling on the motion to suppress.    Pugh, 133 Ill. App.

2d at 168, 272 N.E.2d at 743.   Defense counsel also stated he was

prepared to proceed with the trial subject to his objection.

Pugh, 133 Ill. App. 2d at 169, 272 N.E.2d at 743.
          In Pugh, the court found that proceeding to trial over

defendant's objection was contrary to statute and was thus error.

 Pugh, 133 Ill. App. 2d at 170, 272 N.E.2d at 744.

          The version of section 114-12(d) of the Code applicable

in Pugh contained language not in the Code in effect at all

relevant times in the instant case.     The version of the Code

applicable in Pugh stated, in part, that "the motion [to sup-
press] may be renewed if the trial takes place before a judge

other than the one who heard the motion."     Ill. Rev. Stat. 1967,

ch. 38, par. 114-12(d).   Section 114-12(d) of the Code, in effect

in the instant case, does not have the language the previous

version had that allowed the motion to suppress to be renewed if

the trial was to take place before a different judge than the one

who ruled on the motion to suppress.     See 725 ILCS 5/114-12(d)


                                - 6 -
(West 2002).

          Pugh was distinguished in People v. Evans, 22 Ill. App.

3d 733, 735, 317 N.E.2d 734, 735 (1974).       There, defendant argued

he was denied due process of law because defense counsel was

forced into waiving a formal hearing on his motion to suppress.

Evans, 22 Ill. App. 3d at 735, 317 N.E.2d at 735.        Counsel had

expressly agreed to conduct the hearing on his motion to suppress

simultaneously with the trial.    Evans, 22 Ill. App. 3d at 735,

317 N.E.2d at 735.   The court rejected defendant's argument and

stated it is well settled that a defendant can waive certain

rights through the actions of his attorney.        Evans, 22 Ill. App.
3d at 735, 317 N.E.2d at 735.    The instant case is similar to

Evans in that defense counsel did not object to holding the

suppression hearing and the trial simultaneously but instead

agreed to it.   Defendant argues that the Evans court did not

consider the statutory authority of the trial court to conduct a

hearing on a pretrial motion to suppress during trial.       However,

as stated, section 114-12 of the Code is silent on the trial

court's authority to conduct a hearing on a motion to suppress

during trial.

          Defendant also contends that the principle in Flatt
applicable to the instant case is "that the trial court's author-

ity to conduct a hearing on a motion to suppress after trial has

commenced is limited by section []114-12(c)" of the Code.

Defendant's statement is correct.        However, contrary to defen-

dant's assertion, Flatt is not applicable to the case before us.


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 Unlike the instant case, the trial court in Flatt entertained a

motion to suppress made by defendant after the jury had been

sworn.     Flatt, 82 Ill. 2d at 265, 412 N.E.2d at 517.   The trial

court is limited by section 114-12(c) of the Code in that section

114-12(c) only allows the court to entertain such a motion if it

alleges the evidence was illegally seized.    Flatt, 82 Ill. 2d at

265-66, 412 N.E.2d at 517; 725 ILCS 5/114-12(c) (West 2002).        The

motion in Flatt did not allege the evidence was illegally seized

and thus the trial court erred in entertaining the motion.

Flatt, 82 Ill. 2d at 266, 412 N.E.2d at 517.    Unlike in Flatt,

the motion to suppress in the instant case was filed before trial

began and it alleged the evidence was illegally seized.     Thus,

the facts involved and the reasoning behind the holding in Flatt

make that case inapplicable in this case.

            Defense counsel's objection at the beginning of the

joint suppression hearing/bench trial was a continuing objection

to the evidence presented.    Defense counsel recognized the State

would have to present evidence, some of which was subject to the

motion to suppress, and thus made a continuing objection so

counsel would not interrupt the proceeding.    His objection was

not to holding the hearing and bench trial at the same time.

            The facts of this case do not warrant remanding for

another hearing on defendant's motion to suppress as defendant

requests.    Section 114-12 of the Code is silent on the issue of

when a hearing on a motion to suppress filed prior to trial must

be held.    Defendant acquiesced to holding the suppression hearing


                                 - 8 -
and the bench trial on the same day.    Further, the record shows

the court did not consider the testimony of defendant or

codefendant during the suppression portion of the proceeding when

deciding defendant's guilt or innocence.      We endorse and adopt

the decision in People v. Evans, 22 Ill. App. 3d 733, 317 N.E.2d

734 (1974).

            We note the State argues the trial court has the

inherent power to control its docket and thus the court can

conduct the suppression hearing simultaneously with the trial.

In making this argument, the State implies the court always has

the power to order the suppression hearing and trial be held

jointly.    Our ruling is limited to the facts of this case, i.e.,
where defendant did not object to holding a joint suppression

hearing and bench trial.

            For the reasons stated, we affirm the trial court's

judgment.

            Affirmed.

            APPLETON and COOK, JJ., concur.




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