                            ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. De la Hera, 2011 IL App (3d) 100301




Appellate Court             THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                     ARISTIDES DE LA HERA, Defendant-Appellant.



District & No.              Third District
                            Docket No. 3-10-0301


Filed                       August 18, 2011


Held                        On appeal from his conviction for speeding, defendant forfeited the
(Note: This syllabus        argument that the trial court erred in admitting evidence of a moving
constitutes no part of      radar reading by failing to raise the argument in a posttrial motion and by
the opinion of the court    failing to request the appellate court to review the issue for plain error.
but has been prepared
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under              Appeal from the Circuit Court of Grundy County, No. 09-TR-10411; the
Review                      Hon. Robert C. Marsaglia, Judge, presiding.



Judgment                    Affirmed.
Counsel on                  Gary R. Garretson, of Garretson Law Office, of Morris, for appellant.
Appeal
                            Johnathan M. Bates, State’s Attorney, of Morris (Terry A. Mertel and
                            Thomas D. Arado, both of State’s Attorneys Appellate Prosecutor’s
                            Office, of counsel), for the People.


Panel                       PRESIDING JUSTICE CARTER delivered the judgment of the court,
                            with opinion.
                            Justices McDade and Wright concurred in the judgment and opinion.




                                              OPINION

¶1           After a bench trial, the defendant, Aristides De la Hera, was convicted of speeding (625
        ILCS 5/11-601(b) (West 2008)). The circuit court sentenced the defendant to 90 days of
        court supervision and ordered him to pay a $185 fine. On appeal, the defendant argues that
        the circuit court erred when it admitted evidence of a moving radar reading. We affirm.
¶2           On November 13, 2009, the defendant received a citation for speeding after he was
        clocked by moving radar at 40 miles per hour in a 25 mile-per-hour zone. Over the
        defendant’s objection, the circuit court admitted evidence of the moving radar reading. The
        defendant was convicted and sentenced, and the defendant did not file a posttrial motion
        prior to filing his notice of appeal.
¶3           The defendant’s sole argument on appeal is that the circuit court erred when it admitted
        evidence of the moving radar reading. In part, the State responds that the defendant has
        forfeited this argument because he did not include it in a posttrial motion. The defendant
        does not agree that he has forfeited the argument. Rather, in his reply brief, the defendant
        cites to five cases from 1979 to 1986 for the proposition that he does not have to raise an
        issue in a posttrial motion after a bench trial to preserve it for appeal.
¶4           In People v. Enoch, 122 Ill. 2d 176, 186 (1988), our supreme court held that a defendant
        must both object to an alleged error at trial and raise the alleged error in a posttrial motion
        to avoid forfeiture of the issue on appeal. “The requirement for a written post-trial motion
        is statutory, and the statute requires that a written motion for a new trial shall be filed by the
        defendant and that the motion for a new trial shall specify the grounds therefor.” (Emphasis
        in original.) Enoch, 122 Ill. 2d at 187 (citing Ill. Rev. Stat. 1983, ch. 38, ¶ 116-1 (now 725
        ILCS 5/116-1 (West 2008))). Further, the Enoch court stated, “[s]imply because an objection
        to evidence may have been made during the trial does not justify ignoring the clear mandate
        of the statute that the question be set forth in writing in the motion for a new trial.” Enoch,
        122 Ill. 2d at 187.
¶5           We acknowledge that in other districts of the appellate court, some post-Enoch authority

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       exists for the proposition that “a posttrial motion is not necessary to preserve questions in
       a bench trial if the issues were presented to the trial court.” People v. DiPace, 354 Ill. App.
       3d 104, 107 (2004); see also People v. Crowder, 174 Ill. App. 3d 939, 941 (1988). However,
       an examination of this proposition’s history leads to the conclusion that it should not have
       survived our supreme court’s decision in Enoch.
¶6          In DiPace, the Second District cited the Fourth District’s opinion in Crowder, which
       cited to Enoch but also cited the pre-Enoch case of People v. Larsen, 47 Ill. App. 3d 9, 16
       (1977), for the proposition in question. Larsen cited to People v. Hoffman, 381 Ill. 460, 466
       (1942), which in turn cited to People v. Tobin, 369 Ill. 73, 75-76 (1938). In Tobin, our
       supreme court stated:
                 “The People contend that inasmuch as all of the errors assigned relate to the weight
            and sufficiency of the evidence, they cannot be considered on review because the issue
            was not raised in the trial court by a motion for a new trial, citing People v. Lehner, 335
            Ill. 424 [(1929)], People v. Gabrys, 329 [Ill.] 101 [(1928)], and People v. Marshall, 309
            [Ill.] 122 [(1923)]. However, all of these cases were tried by a jury. It has long been the
            rule in Illinois, in civil cases, that in causes tried by a court without a jury a motion for
            a new trial is unnecessary to preserve questions of the sufficiency of the evidence. (Sands
            v. Kagey, 150 Ill. 109 (1894); Jones v. Buffum, 50 [Ill.] 277 [(1869)]; Mahoney v. Davis,
            44 [Ill.] 288 [(1867)]; Metcalf v. Fouts, 27 [Ill.] 110 [(1862)].) We said in Mahoney v.
            Davis, ‘The judge having once passed upon the evidence, it was not necessary to go
            through the form of submitting it to him again by moving for a new trial.’ The same
            reasoning applies with equal force to criminal cases tried by the court without a jury,
            and, therefore, questions of the sufficiency of the evidence were properly preserved for
            review though no motion for a new trial was made.” Tobin, 369 Ill. at 75-76.
       It is important to note that this proposition was established prior to the enactment of the
       Code of Criminal Procedure of 1963 (725 ILCS 5/100-1 et seq. (West 2008)).
¶7          In Enoch our supreme court unequivocally stated:
            “Prior to 1963, a motion for a new trial was not required when the trial was before the
            court and not a jury, but the language of section 116-1 has changed the law in that
            respect and a written motion for a new trial is now required in both jury and nonjury
            cases.” Enoch, 122 Ill. 2d at 187-88.
       Thus, it is clear that the proposition in question–that a defendant does not have to raise an
       issue in a posttrial motion after a bench trial to preserve it for appeal–ceased to exist as valid
       precedent in Illinois when Enoch was decided in 1988.
¶8          In this case, because the defendant failed to file a posttrial motion raising his argument
       and because he does not request this court to review the issue for plain error, he has forfeited
       the argument on appeal. See People v. Hillier, 237 Ill. 2d 539, 545-46 (2010).
¶9          For the foregoing reasons, we affirm the judgment of the circuit court of Grundy County.

¶ 10       Affirmed.




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