On October 21, 1998, defendant, Rodolfo Nunez, was charged with two counts of first degreemurder and two counts of felony murder predicated on aggravated battery for the murder of Ricky Barrios which occurredon May 8, 1993. Following a bench trial, defendant was found guilty of the lesser included offense of aggravated battery. The trial court sentenced defendant to 54 months of imprisonment. The issue in this case is whether defendant's conviction for aggravated batteryviolates the statute of limitations. The lesser included offense of aggravated battery occurred on May 8, 1993, more thanfive years before defendant was indicted on October 21, 1998. We conclude that defendant was improperly subjected tocriminal liability when the trial court found the defendant guilty of aggravated battery. Under the facts of this case, thefinding of guilty of aggravated battery was barred by the statute of limitations.

BACKGROUND

Tommy Gonzalez testified at trial that in May of 1993 he did not belong to any gang, but he"hung around with" the Latin Kings. In the early morning of May 8, 1993, Gonzalez was "hangingout" with some Latin Kings on Evergreen Avenue, between Spaulding Avenue and Homan Avenue. There were about six people present at the time, including defendant. Defendant was a member ofthe Latin Kings. The victim was believed to be a member of the Milwaukee Kings. The Latin Kingsand the Milwaukee Kings were rival gangs. Ramon Marquez was the chief enforcer of the LatinKings.

Around 2 a.m. on May 8, 1993, the victim came into the area near 1325 North HomanAvenue, at which point Marquez punched the victim in the face. "Everybody," including defendant, jumped on the victimand started to beat him. Gonzalez further testified that defendant punched the victim in the rib area and was beating himalong with the other "guys." Gonzalez testified that defendant and the other offenders were "trying to kill" the victim. The victim fell to the ground anddefendant kicked the victim while he was on the ground. After about three minutes, everybody split up. Marquez ranacross the street and got a gun. When Marquez came back, the victim was trying to get away and Marquez shot himrepeatedly. Gonzalez further testified that he did not participate in the offense. When Marquez threw the first punch,Gonzalez was about 40 feet away from the victim. Gonzalez was able to observe what was going on because the area wasilluminated by streetlights and by lights from a nearby building.

The victim died as a result of multiple gunshot wounds. An autopsy revealed seven entrywounds and one exit wound. Four bullets were recovered from the victim's body. In addition, there were scrapingabrasions on the victim's forehead and cheeks, and there was swelling on the victim's lip. Dr. Choi, a forensic pathologist,testified that the abrasions and swelling could have been caused by the victim being punched or kicked, or by the victimfalling down and scraping his body on the sidewalk.

Several years later, Gonzalez became a member of the Latin Kings. Gonzalez testified thatin 1996 he was present when Marquez had a conversation with some members of the Latin Kingsabout this case. Marquez told his fellow gang members that they should not talk to the police. Marquez warned that if anybody gave any statement or any clues, "something would happen to them." On November 11,1996, Gonzalez spoke to the police about this case. Initially, Gonzalez did not tell the police what he knew about this casebecause he was afraid of Marquez. However, Gonzalez's conscience "caught up" with him, and he decided to cooperate with the police. Gonzalez told the police what heknew about the offense, and he identified a photo of defendant as one of the persons who had been involved in the offense.

Jeremiah Perez, a codefendant charged with first degree murder in this case, also testified at trial. Perez explained that, inexchange for his truthful testimony, he expected to receive a 10-year sentence for second degree murder, a two-yearconsecutive sentence for a pending drug case, and a one-year concurrent sentence for another pending drug case. Pereztestified that in May of 1993 he was a member of the Latin Kings street gang. Perez had known defendant by the name"Mexican." On the morning of May 8, 1993, Perez was smoking cannabis and drinking beer with Marquez. Marquez said, "let's go get the M.K." Perez went over to Evergreen and Homan and saw the victim against the wall of abuilding surrounded by five or six men, including the defendant. Perez testifiedthat he and Marquez walked up and "just started beating on the guy" and everybody began to hit andkick the victim. According to Perez, defendant kicked the victim about 15 to 20 times while thevictim was on the ground. About five minutes later, Marquez went to get a gun and everybodyscattered. Marquez then approached the victim and began to shoot the gun at the victim.

Shortly after this offense, Perez got shot in the head in an unrelated offense. Although thebullet did not penetrate his brain, Perez testified that the shooting affected his memory. In 1995, Perez spoke to the policeabout this case. Sergeant John McMurray testified that, during the course of the investigation, Perez gave the policeapproximately 10 names of possible suspects, including the name "Mexican."

After speaking with both Perez and Gonzalez, the police determined that the person Perez and Gonzalez had known as"Mexican" was defendant, Rodolfo Nunez. The police attempted to locate defendant, but their efforts were unsuccessful. In June of 1997, the police obtained a warrant for defendant's arrest. In August of 1998, the police were informed byofficials from Kentucky that defendant was being held in custody on the warrant. The police brought defendant back to Chicago.

After the State rested its case, the trial court denied defendant's motion for a directed finding. Defendant testified that, in1988, he joined the Latin Kings when he was 17 years old. Defendant belonged to the Hirsch and Spaulding section of theLatin Kings. According to defendant, members of the Latin Kings sometimes put tattoos on their bodies to show theiraffiliation. Defendant testified about a number of tattoos he had on his body, including the name "Mexican."

Defendant testified that he was not an active member of the Latin Kings at the time of the offense, but he still associatedwith some members of the gang. Defendant became inactive with the Latin Kings after he was placed on misdemeanorprobation for a gun case in March of 1993.

Defendant testified that he did not know where he was on May 8, 1993, at the time of the crime, between midnight and 4a.m. He testified that he was not in the vicinity of Homan and Evergreen and denied any involvement in the beating ormurder of the victim. According to defendant, he did not hear about the offense until several days after it had occurred. Defendant testified that he moved to Kentucky in 1994, but he went back to Chicago every couple of months. In 1995,defendant became a permanent resident of Kentucky. In 1997, defendant opened a restaurant in Kentucky, and therestaurant received an award.

The trial court concluded that defendant was an initial participant in the offense. It was the opinion of the trial court thatGonzalez and Perez testified more credibly than defendant. The trial court found defendant guilty of the lesser included offense of aggravated battery and stated:

"[T]here is sufficient evidence to find Mr. Nunez guilty of aggravated battery although that evidence falls short of findinghim guilty of the crime of first degree murder for which he was charged. I will note that the way the charging instrument inthe indictment reads, they talk about aggravated battery as the felony that is the predicate upon which this first degreemurder occurred. They talk about him not only being shot, but being beaten with hands and feet which is also acontributing cause of his death ***. Although I do not find that he is responsible for first degree murder, I do believe fromthe evidence that I've heard that the Government has met their burden to prove the lesser included offense of aggravatedbattery. And he is so found guilty."

After considering aggravation and mitigation, the trial court sentenced defendant to 54 months of imprisonment.

ANALYSIS

The issue in this case is whether defendant's conviction for aggravated battery violates the statute of limitations. Thestatute of limitations for aggravated battery is three years, while murder has no statute of limitations. This court has consistently held that the charging document must allege that the crime wascommitted at some time before the return of the indictment or the filing of the information and within the period fixed by the statute of limitations. People v. Day, 404 Ill. 268(1949). In the alternative, facts may be alleged and proved which by reason of the provisions of theCriminal Code of 1961 (the Code) would toll the running of the statute. 720 ILCS 5/3-5, 3-6, 3-7, 3-8 (1996).

When an indictment or information is attacked for the first time on appeal, it is sufficient thatthe indictment or information "apprised the accused of the precise offense charged with sufficient specificity to prepare hisdefense and allow pleading a resulting conviction as a bar to future prosecution arising out of the same conduct." People v. Gilmore, 63 Ill. 2d 23, 29 (1976); People v. Pujoue, 61 Ill. 2d 335,339 (1975). The determinative factor is whether the defect in the information or indictment prejudiced the defendant in preparing his defense. If, however, theinformation or indictment is attacked before trial, the information must strictly comply with thepleading requirements of the Code. 720 ILCS 5/3-5, 3-6, 3-7 (1996); People v. Smith, 99 Ill. 2d 467 (1984); Gilmore, 63Ill. 2d at 29; Pujoue, 61 Ill. 2d at 339. Here, the indictment was attacked forthe first time after the State rested but before the defense presented its case.

In People v. Strait, 72 Ill. 2d 503 (1978), the supreme court recognized the long-established rule "that if the indictment orinformation shows on its face that the offense was not committed within the period of limitation [then] facts must beaverred which invoke one of the exceptions contained in the statute." Strait, 72 Ill. 2d at 504-05. In this case the indictment alleged that the criminalconduct occurred in 1993, while defendant was indicted in 1998. The statute of limitations foraggravated battery is three years and the indictment failed to allege any facts that would toll therunning of the statute of limitations.

In People v. Toolen, the indictment, filed on January 29, 1982, alleged that the criminal conduct occurred "between January1, 1979 and October 1980." People v. Toolen, 116 Ill. App. 3d 632 (1983). The first month of that period was beyond thelimitations period, and no facts in the indictment established that the last of any series of acts occurred later than that first month.Consequently, the appellate court dismissed the indictment because the State failed to allege factsgiving rise to the exception for a series of acts. Toolen, 116 Ill. App. 3d at 653.

Here, during trial, defense counsel did not move to dismiss the two murder counts based onaggravated battery in a pretrial motion. Defense counsel first moved that these two counts of the indictment be dismissedfor violating the statute of limitations after the State rested. The trial court admonished defense counsel regarding thestatute of limitations issue as follows:

"That is a matter that you should have brought to me in a pretrial motion to dismiss the indictment. There's a remedy forwhat you're claiming is wrong, and the remedy is a motion to dismiss the indictment. And you didn't do that."

Defense counsel responded:

"Well I don't believe I waived it ***. However, to file a pretrialmotion on something like that would have broken the term."

Defense counsel in support of the motion to dismiss cited People v. Munoz, 23 Ill. App. 3d306 (1974), and based on that case defense argued as follows:

"[I]t is a fundamental rule of criminal pleading that an indictment which on its face shows that the offense charged is barredby the statute of limitations is wholly insufficient at law. The indictment, therefore, must reflect that the offense wascommitted on a date within the period of limitations. When a statute extends a statute of limitations in certain cases and theoffense is alleged to have been committed on a date not within the general limitation period, the indictment must assert thefacts avoiding the bar of limitations statute."

Defense counsel argued that aggravated battery was barred by the statute of limitations and theindictment failed to allege facts that would avoid the bar of the limitations statute. Defense counsel also relied on the caseof People v. Strait, 72 Ill. 2d 503 (1978), for the same proposition.

Defendant's motion to dismiss based on a violation of the statute of limitations was denied. Afterdefendant was convicted of aggravated battery defense counsel raised the statute of limitationsargument in a written posttrial motion, which was also denied by the trial court.

We find the case of People v. Brocksmith, 162 Ill. 2d 224 (1994), instructive. In Brocksmith, defendant was charged byinformation with one count of felony theft by deception. Following trial, defense counsel successfully tendered a jury instruction on the included offense of deceptive practices,a misdemeanor. Brocksmith was convicted of the misdemeanor offense. The appellate court held that defense counselprovided ineffective assistance of counsel by tendering an instruction on a time-barred offense without informing defendantthat the statute of limitations had run on the offense.

The supreme court affirmed the appellate court and concluded as follows:

"In the present case defense counsel, rather than defendant, made the ultimate decision to tender a lesser included offenseinstruction on deceptive practices. We believe that this decision ultimately belonged to defendant, and defendant'sconviction must therefore be reversed. Because we base our decision on this ground, we need not consider the appellatecourt's finding that the failure to discuss with defendant the statute of limitations on deceptive practices constitutedineffective assistance of counsel.  

Res judicata prevents defendant from being retried on the charge of theft by deception. Further, remand for a new trial onthe charge of deceptive practices would be inconsistent with our findings here. Defendant was improperly subjected toadditional criminal liability when defense counsel wrongfully tendered an instruction on deceptive practices withoutdefendant's consent; remand for a new trial on the charge of deceptive practices would perpetuate that error. The charge of deceptive practices, in any event, is barred by the statute of limitations. Defense counsel's waiver of the statute oflimitations cannot be deemed effective where defense counsel did not have the right to waive the limitation. ***." Brocksmith, 162 Ill. 2d at 229-30.