2015 IL App (2d) 140139 No. 2-14-0139 Opinion filed May 18, 2015 ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Du Page County. ) Plaintiff-Appellee, ) ) v. ) No. 13-DT-3074 ) SCOTT LUTTER, ) Honorable ) Liam C. Brennan, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE ZENOFF delivered the judgment of the court, with opinion. Justice Spence specially concurred in the judgment, with opinion. Justice Burke dissented, with opinion.

OPINION

¶1 Following a bench trial, defendant, Scott Lutter, was found guilty of reckless driving (625

ILCS 5/11-503(a)(1) (West 2012)). He appeals, contending that the information charging him with this offense was filed outside the statute of limitations and that the State failed to prove beyond a reasonable doubt that an exception to the statute of limitations applied. We reverse.

¶2 On September 19, 2013, the State filed an information charging defendant with driving under the influence of alcohol (625 ILCS 5/11-501(a)(2) (West 2012)), leaving the scene of a property-damage accident (625 ILCS 5/11-402(a) (West 2012)), reckless driving (625 ILCS

5/11-503(a)(1) (West 2012)), failure to notify the Secretary of State of a change of address (625

2015 IL App (2d) 140139

ILCS 5/3-416(a) (West 2012)), and reckless conduct (720 ILCS 5/12-5(a) (West 2012)). The information alleged that the offenses occurred on January 10, 2012. It further alleged that the limitations period was tolled while case No. 12-DT-189 was pending.

¶3 The matter proceeded to a bench trial, where Dejan Gakovic testified that on January 10, 2012, his car was stopped at a railroad crossing in Bensenville. The gates were down, as a train was passing. He felt a bump as another car hit him from behind. He identified defendant as the other car’s driver. After defendant hit his car a total of six times, Gakovic called the police.

When the gates went up, defendant went around him on the right.

¶4 Officer Stephens testified that he responded to a report of a vehicle being pushed into a train. He arrived at the intersection and saw a vehicle that appeared to be pushing another toward the passing train. When the gates went up, defendant’s vehicle passed the other car on the right shoulder and continued across the railroad tracks, where Stephens eventually stopped it.

¶5 After the State rested, defendant moved for a judgment of acquittal. Defense counsel

argued that, because the information showed on its face that it was filed beyond the statute of limitations, the State had to prove, as an element of its case, a statutory exception that would toll the limitations period, but had not done so. The State, citing People v. Gray, 396 Ill. App. 3d

216 (2009), argued that defendant had forfeited the issue by not raising it in a motion to dismiss.

The trial court denied the motion and found defendant guilty of reckless driving. The court denied defendant’s motion for a new trial and sentenced him to court supervision. Defendant timely appeals.

¶6 Defendant’s brief lists three separate issues, but all relate to the same point: that the State did not prove beyond a reasonable doubt an event that tolled the limitations period. Defendant was charged with five misdemeanors. Generally, the State must commence a prosecution for a

140140

2015 IL App (2d) 140139 misdemeanor within six months after the offense was committed. 720 ILCS 5/3-5(b) (West

2012). The limitations period may be either tolled or extended for various reasons, including when “[a] prosecution is pending against the defendant for the same conduct.” 720 ILCS 5/3-

7(c) (West 2012).

¶7 A long line of Illinois cases holds that, “[w]here an indictment on its face shows that an

offense was not committed within the applicable limitation period, it becomes an element of the State’s case to allege and prove the existence of facts which invoke an exception to the limitation

period.” People v. Morris, 135 Ill. 2d 540, 546 (1990). Morris held that the issue is like “the other elements which the State must prove, such as the elements of the offense with which a defendant is being charged.” Id.

¶8 Here, although the information vaguely alleged facts that would arguably toll the limitations period, the State offered no evidence whatsoever of those facts during the trial. Thus, defendant’s motion for acquittal was well taken and should have been granted.

¶9 Under Morris, the State had to not only allege, but prove, those facts, as they became an element of its case. Id. Although few cases have dealt with the State’s failure to prove an exception to the statute of limitations, courts have reversed convictions where the State did not offer such evidence at trial. See People v. Ross, 325 Ill. 417, 420 (1927) (“It being incumbent upon the prosecution to allege the existence of facts which bring the case within the exception to

the Statute of Limitations, the burden of proving the allegation necessarily follows.”); People v. Whittington, 143 Ill. App. 438, 440-41 (1908).

¶ 10 The State argues, and the trial court held, that the State was relieved of its burden because defendant did not move to dismiss the information on limitations grounds under section 114-

1(a)(2) of the Code of Criminal Procedure of 1963. 725 ILCS 5/114-1(a)(2) (West 2012).

140141

2015 IL App (2d) 140139

Section 114-1(a) provides for the dismissal of a charging instrument before trial on various grounds. 725 ILCS 5/114-1(a) (West 2012). That section further provides that a motion to dismiss must be filed within a reasonable time after the defendant has been arraigned and that

any “motion not filed within such time or an extension thereof shall not be considered by the court and the grounds therefor *** are waived.” 725 ILCS 5/114-1(b) (West 2012). The State concludes that, because defendant did not file a motion before trial raising the limitations defense, he forfeited it. Defendant contends that to require him to file a motion to dismiss violates his due process rights because it shifts the burden of proof. We agree with defendant.

¶ 11 The State’s argument fails to account for Morris’s holding that the exception became an element of the State’s case. Because this is so, defendant could not forfeit the issue by failing to raise it pretrial. A defendant is entitled to “ ‘a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.’ ” Apprendi v. New

Jersey, 530 U.S. 466, 477 (2000) (quoting United States v. Gaudin, 515 U.S. 506, 510 (1995)).

The State always has the burden of proving beyond a reasonable doubt the elements of the crime charged and it is improper for the State to attempt to shift the burden of proof to the defendant.

People v. Robinson, 391 Ill. App. 3d 822, 841 (2009); see also People v. Peppers, 352 Ill. App.

3d 1002, 1008 (2004) (defendant may attack sufficiency of the evidence at any time; issue cannot

be forfeited). As defendant points out, there is even a pattern jury instruction providing that the State has the burden of proving beyond a reasonable doubt the existence of an exception to the statute of limitations. Illinois Pattern Jury Instructions, Criminal, No. 24-25.23 (4th ed. 2000).

Thus, because the exception to the statute of limitations was an element of the State’s case, defendant did not forfeit the issue by failing to raise it in a pretrial motion and the State was not relieved of the burden of proving the exception at trial.

140142

2015 IL App (2d) 140139

¶ 12 We distinguish the present situation from that in People v. Gwinn, 255 Ill. App. 3d 628

(1994), where we held that the defendant had to file a motion to dismiss pursuant to section 114-

1(a)(2) in order to raise the statute of limitations as a bar to his prosecution. Gwinn, 255 Ill. App.

3d at 631. In Gwinn, unlike in the present case, the State did not allege in the charging instrument that the offense was outside the statute of limitations but that there existed an

exception to the limitations period. Gwinn, 255 Ill. App. 3d at 630-31. In the Gwinn situation, the only way a defendant can raise the issue is by filing a motion to dismiss. Then, if the motion to dismiss is denied, the defendant can raise the expiration of the statute of limitations as an affirmative defense at trial and avail himself or herself of the jury instruction.

¶ 13 Gray, on which the State relies, does not persuade us otherwise. There, the court held that Morris’s requirement “that the State must plead and prove the circumstances justifying either an extension or tolling of the limitation period, should not be interpreted to mean the State

has to prove such circumstances to the jury in every case.” Gray, 396 Ill. App. 3d at 224. The court concluded that “in the majority of cases, including the case before us, the State must prove to the court before the trial, upon a challenge by the defendant, typically in the form of a motion to dismiss *** that particular circumstances justify an extension or tolling of the limitation period.” (Emphasis in original.) Gray, 396 Ill. App. 3d at 224. At such a hearing, the trial court

could, if necessary, decide factual issues, and the defendant’s only remedy is the dismissal of the charge. Gray, 396 Ill. App. 3d at 224.

¶ 14 Initially, we note that Gray is distinguishable. There, the defendant did raise the limitations issue in a pretrial motion. Thus, to the extent that Gray implies that a defendant forfeits the issue by not raising it pretrial, the discussion is purely dicta.

140143

2015 IL App (2d) 140139

¶ 15 Our primary difficulty with Gray is more fundamental, however. Gray’s holding that the State may “prove” an event tolling the limitations period at a pretrial hearing, which a defendant must request in order to preserve the issue, is difficult to square with Morris’s holding that an exception to the limitations period is an element of the State’s case that it must plead and prove.

Morris, 135 Ill. 2d at 546. While Morris was concerned with the indictment’s allegations, the opinion makes clear that the issue is to be treated like any other element of the State’s case.

Morris, 135 Ill. 2d at 546. Moreover, because the limitations exception is an element of the State’s case, a defendant is entitled to have the trier of fact decide the issue. Apprendi, 530 U.S. at 477. Here, the trial court was the factfinder, so the State’s proof at a pretrial hearing might have been sufficient. However, because the issue is an element of the State’s case, defendant did not forfeit the issue by failing to request a pretrial hearing.

¶ 16 Gray attempts to justify its holding by baldly asserting that the issue is one of law and that a jury should not decide issues of law. Gray, 396 Ill. App. 3d at 224-25. We disagree. We see no reason why issues concerning exceptions to the limitations period should be categorically

considered questions of law any more than issues surrounding elements of an offense. For example, in this case the information alleged that the limitations period was tolled during the pendency of case No. 12-DT-189. Whether such a case existed, whether it was filed within the limitations period, and whether it related to the same facts that were the subject of this case are inherently factual questions.

¶ 17 Gray cited Barnett v. Clark, 113 Ill. App. 3d 1091, 1092-93 (1983), for the proposition that whether a limitations period is tolled is a question of law, but that case does not support its holding. The cited passage reads, “The question of law identified by the trial court for our resolution, and described as one of first impression in Illinois, is whether the two-year limitation

140144

2015 IL App (2d) 140139 contained in section 4 of the Paternity Act (Ill. Rev. Stat. 1981, ch. 40, par. 1354) is tolled during the minority of the mother of the illegitimate child.” Barnett, 113 Ill. App. 3d at 1092-93

Clearly, the construction of a statute that tolls a limitations period is a question of law. See

Village of Bull Valley v. Zeinz, 2014 IL App (2d) 140053, ¶ 15 (construction of statute is issue of law). However, that does not mean that every issue that somehow involves tolling a limitations period is one of law. At least as far as the record shows, the issue in this case would not have

required the trial court to construe the statute and, as noted, the relevant issues surrounding the earlier case would also appear to be factual.

¶ 18 Our research has disclosed two cases in which the principle stated in Morris was put into

action. In Ross, the State adduced proof at trial on the element of an exception to the statute of limitations, and the appellate court reversed the defendant’s conviction of assault with a deadly

weapon, deeming the evidence of the exception to be insufficient. Ross, 325 Ill. at 420. Why the State has the burden of proving the element of the exception to the statute of limitations was explained thusly: statutes of limitations are a bar to prosecution, “an amnesty declaring that after a certain time oblivion shall be cast over the offense” and “the offender may from thenceforth cease to preserve proofs of his innocence, for the proofs of his guilt are blotted out.” Ross, 325

Ill. at 421. Our supreme court in Ross succinctly observed that statutes of limitations “annihilate

the State’s power to punish and [they] restore the offender’s rights to their original status.” Ross, 325 Ill. at 422.

¶ 19 In Whittington, the State alleged in the charging instrument that the offense was outside the statute of limitations but that the period was tolled because of the defendant’s absence from

the state. Whittington, 143 Ill. App. at 440. At trial, the State adduced “very slight and incomplete” evidence of the defendant’s absence, and the court plainly stated that the burden was

140145

2015 IL App (2d) 140139 on the State “to prove the fact as set up in the amended information.” Whittington, 143 Ill. App. at 441. Accordingly, where the limitations period has expired, and where in the charging instrument the State expressly alleges that fact plus some exception, the State can no more shift the burden to the defendant than it could as to any other element of the offense.

¶ 20 We are well aware of the principle that a statute of limitations is a defense. See, e.g., People v. Polk, 21 Ill. 2d 594, 599 (1961) (“The Statute of Limitations is a defense which may or may not be urged by a defendant.”). However, though the expiration of a statute of limitations is

a defense, Morris establishes that an exception to a statute of limitations is an “element of the State’s case.” Morris, 135 Ill. 2d at 546. Here, in the information, the State alleged an exception to the statute of limitations. The State thus complied with Morris’s requirement that it “allege”

the exception. See Morris, 135 Ill. 2d at 546. But Morris also required the State to “prove” it, along with the other elements of the State’s case. See Morris, 135 Ill. 2d at 546. Thus, the question here is not whether, by failing to move to dismiss, defendant forfeited a defense; it is

whether, by failing to move to dismiss, he forfeited the State’s burden of proving an element of its case. And, as we noted, a defendant cannot forfeit that burden. For this reason, the dissent’s citation of Smith v. United States, 568 U.S. ___, 133 S. Ct. 714 (2013), is misplaced. Smith, like

Polk, involved a statute-of-limitations defense rather than an exception to the statute of limitations.

¶ 21 The dissent casts Morris, rather than Gray, as the outlier. However, Morris is part of a

138-year-old rule providing that the State has the burden to plead and prove an exception to the statute of limitations. The rule was fashioned by our supreme court and was necessitated by the presumption of innocence. The rule, which we are bound to follow, requires that we recognize the distinction between the running of the statute of limitations, which bars prosecution, and 140146

2015 IL App (2d) 140139 exceptions to the statute of limitations, which keep an otherwise moribund prosecution alive.

This distinction is not offensive, as the dissent charges, unless the presumption of innocence is offensive.

¶ 22 Very early, our supreme court distinguished between bad indictments, which are subject to being quashed, and good indictments, which are not. In Garrison v. People, 87 Ill. 96, 97

(1877), our supreme court stated that an indictment that showed on its face that the offense was committed outside of the statute of limitations, and that did not allege an exception, was “clearly bad, and ought to have been quashed.” The court’s clear meaning was that, if the indictment alleges an exception, it ought not be quashed.

¶ 23 The court in Ross made the leap from pleading to proof: “It being incumbent upon the prosecution to allege the existence of facts which bring the case within the exception to the Statute of Limitations, the burden of proving the allegation necessarily follows.” Ross, 325 Ill. at

420. In Ross, the prosecution failed to prove the exception, but the court nevertheless remanded for a new trial, never explaining why it did not reverse outright. Perhaps that was because it would be another two years before our supreme court stated that a charging document’s allegation of an exception to the statute of limitations is a “material” allegation, which the State is bound to prove. People v. Stajduhar, 335 Ill. 412, 413 (1929). A “material” allegation in a pleading is an assertion that is essential to the charge. Black’s Law Dictionary 82 (8th ed. 2004).

Stajduhar plowed the ground for Morris, where the court unequivocally held that a charging

document’s allegation of an exception to the statute of limitations becomes an “element of the State’s case,” which, “[a]s with the other elements,” the State must prove. Morris, 135 Ill. 2d at

546.

140147

2015 IL App (2d) 140139

¶ 24 The dissent concedes that Morris so holds, but it is uncomfortable with reading the language literally. Instead, it expounds a rationale that is wholly absent from our supreme court’s analysis. Nowhere does the court in Morris hint, suggest, or insinuate that pleading an exception to the statute of limitations is a “jurisdictional imperative,” which is the reason that the dissent does not include a cite to Morris for its assertion. Infra ¶ 49. As stated above, Morris

is the fruit of Garrison, Ross, and Stajduhar, and those cases did not couch the requirement in terms of jurisdiction, either. Rather, Morris makes clear that the purpose of pleading the exception with specificity is so that the defendant can prepare his defense (Morris, 135 Ill. 2d at

547), not so that the defendant can prepare a motion to dismiss, or merely be put on notice that the statute of limitations has not expired.

¶ 25 The notion that Morris and its predecessors require notice that the State is relying on an exception to the statute of limitations only so that a defendant can bring a section 114-1 motion to dismiss is refuted by two well-established rules: (1) the State bears the burden of proving that the offense occurred within the applicable statute of limitations (People v. Blitstein, 192 Ill. App.

3d 281, 284 (1989)); and (2) the sufficiency of the State’s evidence is not a ground on which to challenge an indictment (People v. Sparks, 221 Ill. App. 3d 546, 549 (1991)). Where the State must rely on an exception to the statute of limitations to bring the prosecution, its failure to prove the exception means that the State failed to prove that the offense occurred within the limitations

period. Additionally, placing the burden on the defendant to move to dismiss a facially and legally sufficient indictment improperly requires the defendant to challenge the sufficiency of the State’s evidence on a motion to dismiss. Thus, the dissent would rewrite our criminal law in the service of relieving the State of its burden to prove its case. No doubt it is just as inconvenient to require the State to prove the value of merchandise alleged to have been stolen in a theft

- 10 - 2015 IL App (2d) 140139 prosecution or to prove monetary damages in a prosecution for criminal damage to property. Victims do not always keep receipts or know the value of their belongings, so why not place the burden on the defendant to move to dismiss if he or she disagrees with the allegations in the indictment? ¶ 26 Far from having doubts about Morris, our supreme court affirmed it in People v. Thingvold, 145 Ill. 2d 441 (1991). In response to the Garrison-Ross-Stajduhar-Morris- Thingvold rule, the legislature could have abrogated it, but it has not done so. Where our supreme court took 138 years to forge the rule, and where our legislature has not touched it in 138 years, it ill behooves the appellate court to undo it. ¶ 27 Our supreme court has never endorsed the dissent’s proposition that a defendant must move to dismiss an indictment that is sufficient on its face and not subject to a legal challenge. When the State urged that Illinois should adopt a rule that limitation-tolling facts need not be alleged in a charging document, our supreme court rejected that notion. People v. Strait, 72 Ill. 2d 503, 506 (1978). The court made clear that a charging document that does not allege that the crime was committed within the period fixed by the statute of limitations is subject to dismissal. Strait, 72 Ill. 2d at 505. Alternatively, the court said that an insufficient charging document can be amended to remove the grounds for dismissal. Strait, 72 Ill. 2d at 506. The obvious and commonsense interpretation is that a charging document that is not subject to a legal challenge is not subject to a motion to dismiss. ¶ 28 The dissent’s reliance on People v. Chenowith, 2015 IL 116898, and People v. Covelli, 184 Ill. App. 3d 114 (1989), does not weaken our position, because those cases are inapposite. In Chenowith, which involved a prosecution for financial exploitation of an elderly person, the defendant moved to dismiss the indictment on the ground that the State failed to commence the - 11 - 2015 IL App (2d) 140139 prosecution within the statute of limitations. Chenowith, 2015 IL 116898, ¶ 14. In response, the State filed an information alleging that the statute of limitations had not expired, because it was extended by a statutory provision allowing commencement of the prosecution within one year after the State’s Attorney discovered the offense. Chenowith, 2015 IL 116898, ¶ 14. The defendant moved to dismiss the information, contending that the charges were filed after the extended limitations period had expired. Chenowith, 2015 IL 116898, ¶ 15. The question raised by the motion to dismiss was the meaning of the statutory phrase, “discovery of the offense,” which was a question of law requiring statutory construction. Chenowith, 2015 IL 116898, ¶ 20. Similarly, in Covelli, the defendant’s motion to dismiss the indictment raised only a question of law involving statutory construction. Covelli, 184 Ill. App. 3d at 120-22. Neither of these cases supports the dissent’s view that defendant in our case had to move to dismiss a charging instrument that was facially sufficient and was not subject to a legal challenge. ¶ 29 We believe that our conclusion that defendant was not required to file a motion to dismiss is bolstered by the Third District’s recent opinion in In re S.M., 2015 IL App (3d) 140687, ¶¶ 21, 22, where the court held that the juvenile respondent’s failure to move to dismiss the delinquency petition did not constitute a judicial admission that the respondent was under the age of 18, which was an element of the offense with which the respondent was charged, and did not waive the State’s obligation to prove this element at trial. ¶ 30 Because the tolling of the limitations period was an element of the State’s case that it had to prove beyond a reasonable doubt at trial, and because it failed to do so, we reverse the judgment of the circuit court of Du Page County. ¶ 31 Reversed. ¶ 32 JUSTICE SPENCE, specially concurring. - 12 - 2015 IL App (2d) 140139 ¶ 33 I write separately to explain that, although the dissent raises legitimate concerns over treating an exception to the statute of limitations as an element that the State must prove, I believe that our supreme court’s decision in People v. Morris, 135 Ill. 2d 540 (1990), dictates the result in this case. ¶ 34 In Morris, the State added various counts to the indictment after the expiration of the statute of limitations. Id. at 543. The State admitted that the counts failed to allege any facts invoking an exception to the limitations period, but it asked the supreme court to reconsider its decision in People v. Strait, 72 Ill. 2d 503, 504-05 (1978). Morris, 135 Ill. 2d at 543. The supreme court’s decision in Strait had reaffirmed the “ ‘long-established rule that if [an] indictment or information shows on its face that the offense was not committed within the period of limitation facts must be averred which invoke one of the exceptions contained in the statute.’ ” Id. (quoting Strait, 72 Ill. 2d at 504-05). The Morris court declined the State’s request, holding that Strait was still controlling precedent. ¶ 35 However, Morris went on to state, “[w]here an indictment on its face shows that an offense was not committed within the applicable limitation period, it becomes an element of the State’s case to allege and prove the existence of facts which invoke an exception to the limitation period. [Citations.] As with the other elements which the State must prove, such as the elements of the offense with which a defendant is being charged,” the State is to identify the grounds for the exception “with sufficient specificity to enable [the defendant] to defend against them.” (Internal quotation marks omitted.) Id. at 546. Accordingly, Morris was the first supreme court case to go beyond the rule that the State must invoke an exception in a case where the offense is outside the statute of limitations. Not only is the State required to allege an exception to the - 13 - 2015 IL App (2d) 140139 statute of limitations, Morris elevated the exception to the level of an element that the State must prove as part of its case. ¶ 36 As the dissent points out, treating a statute-of-limitations exception as an element of the State’s case is problematic. Infra ¶ 45. This is because the statute of limitations has traditionally been characterized as a defense that a defendant may forfeit. See People v. Polk, 21 Ill. 2d 594, 599 (1961) (the statute of limitations is a defense that a defendant may or may not urge). This was true even in cases where the State failed to allege an exception to the statute of limitations, but should have. In such cases, the defendant could still forfeit the defense by failing to file a motion to dismiss. Infra ¶ 47 (citing People v. Gwinn, 255 Ill. App. 3d 628 (1994), People v. Wasson, 211 Ill. App. 3d 264 (1991), People v. Williams, 79 Ill. App. 3d 806 (1979), and People v. Speller, 46 Ill. App. 3d 208 (1977)). Morris results in disparate approaches: the statute of limitations is a defense if the State does not allege it, but it is an element if it does. ¶ 37 The element/defense dichotomy created by Morris benefitted defendant here. Defendant sat silent and then sandbagged the State by appealing the State’s failure to prove, beyond a reasonable doubt, the element of the exception to the statute of limitations. Again, had the statute of limitations been considered a defense as opposed to an element, however, defendant’s failure to file a motion to dismiss under section 114-1(a)(2) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/114-1(a)(2) (West 2012)) would have resulted in forfeiture. See People v. Gray, 396 Ill. App. 3d 216 (2009) (holding that, under section 114-1(b) of the Code, the defendant forfeited the defense by failing to file a motion to dismiss under section 114- 1(a)(2)). Rather than requiring the State to prove the exception beyond a reasonable doubt, the burden would have been on defendant to assert the defense. See Smith v. United States, 568 U.S. ___, ___, 133 S. Ct. 714, 719 (2013) (while the government must prove beyond a reasonable - 14 - 2015 IL App (2d) 140139 doubt every fact necessary to constitute the crime with which the defendant is charged, the government has no constitutional duty to overcome an affirmative defense beyond a reasonable doubt). ¶ 38 Defendant is receiving a windfall in this case, which, as the dissent correctly states, is “offensive to a legal system that should uphold the rule of law over procedural sleight of hand” (infra ¶ 59), and which runs counter to the purpose of the statute of limitations. See People v. Macon, 396 Ill. App. 3d 451, 456 (2009) (“The purpose of providing limitations periods for offenses is to minimize the danger of punishment for conduct that occurred in the distant past, to encourage the State to be diligent in its investigation and to provide the trier of fact with evidence that is fresh and not distorted or diluted by the passage of time.”). ¶ 39 Whether the Morris court intended to elevate a statute-of-limitations exception to an element is not a question that this court has the authority to answer. See Gatreaux v. DKW Enterprises, LLC, 2011 IL App (1st) 103482, ¶ 23 (appellate courts are bound to follow decisions of the supreme court and have no authority to overrule or modify them). We are bound by Morris, and given the State’s lack of proof as to the exception, regrettably we must reverse. ¶ 40 JUSTICE BURKE, dissenting. ¶ 41 The majority’s analysis in this case consistently returns to one point, that in Morris our supreme court stated that an exception to the statute of limitations is an element which the State must allege and prove. Morris, 135 Ill. 2d at 546. I believe that this statement must first be viewed in the context of that case. ¶ 42 In Morris, the defendant filed a pretrial motion to dismiss certain counts of the indictment because the State failed to allege facts showing that the statute of limitations had not been violated. That motion was denied. On review, the supreme court held that, where an indictment - 15 - 2015 IL App (2d) 140139 on its face shows that an offense was not committed within the applicable limitations period, an exception to the statute of limitations becomes an element that the State must allege and prove. Id. ¶ 43 Morris was concerned with a deficiently pled charging instrument that did not enable the defendant to prepare a defense to the statute-of-limitations exception. Id. at 547-48. The case did not deal with insufficient proof of the exception or whether such insufficient proof would result in an acquittal. The supreme court remanded the matter to the appellate court to determine whether the evidence adduced at trial was sufficient to support the conviction for double jeopardy purposes as, on remand to the trial court, the State would be free to reindict the defendant for the same charges with the addition of any statute-of-limitations exception averment. Id. at 548-51. ¶ 44 The majority states that I concede that Morris holds that the exception is an element that must be proven. Actually, Morris holds that an indictment should be dismissed upon the defendant’s motion if an exception is required and not pled. ^[1] ¶ 45 Treating a statute-of-limitations exception as an element of the State’s case is problematic for several reasons. While, like in Morris, the supreme court has labeled an exception as an element, the court has also characterized it as a defense to a criminal charge. In Polk, 21 Ill. 2d at 599, the supreme court stated, “[t]he Statute of Limitations is a defense which may or may not be urged by a defendant.” The issue then is whether raising the statute of limitations as a bar to prosecution is an affirmative defense or whether any limitations exception becomes an element, as argued by defendant in this case. Here, the trial court followed the Fourth District’s opinion