*1 in imposing improper the trial court into factors any took account an abuse of imposed sentence. Nor we find do sentence sentencing hearing. discretion. We for new therefore decline remand Perruquet 882. 68 Ill. 2d For of the circuit foregoing judgment reasons we affirm the of Cook County imposed and the sentence thereon.
Affirmed. DOWNING,
STAMOS JJ., concur. ILLINOIS, THE PEOPLE OF Plaintiff-Appellant, THE STATE OF EDWARDS, Defendant-Appellee. ELLEN (2nd Division) First District No. 80-1101 Opinion filed June STAMOS, J., dissenting. Carey, Attorney, (Marcia
Bernard Chicago E. State’s B. Orr and Iris Sholder, Attorneys, counsel), Assistant People. for the Doherty, Defender, (James Reddy, Chicago Public H. Assistant James J. Defender, Public counsel), appellee. opinion Mr. PRESIDING HARTMAN delivered JUSTICE court: defendant, “acquittal” appeals
The State from the trial court’s Edwards, to review appellate jurisdiction Ellen and seeks to invoke 1979,ch. (111.Rev. Stat. disposition 604(a)(1) Rule Supreme under Court 110A, appeal orders par. 604(a)(1)), permits which court’s substantive effect of alleges dismissal. The State that the *2 than rather charge against defendant improperly action was to dismiss the acquit. to 24,1979, in instant
The on October information filed State defendants, O. otherwise called James, case named three V. James Fisher, Mansfield, Edwards, defendant, Reginald and present Ellen arraigned on October charging all with theft. The three were three action, time, all three one proceeded against From that the State complains occurred. until the date on which of which the State the events court When March the cause came on for trial on defendants, the three granted a continuance to March to two of Fisher, experiencing apparently V. O. Reginald and who were James some defense counsel. difficulty respect securing with to in the ready for The trial court then asked whether the State was it that: was responded prosecutor case of defendant Ellen Edwards. The was the State together; try the State’s intention all three defendants to case trial on the go to to attempting comply with the trial court’s desire * * “* separately try her case of Ellen Edwards amenable to and was * * * really grounds from the though other defendants there [were] severance”; arresting officers get for attempts the State made had not be reached furlough into court that and could day but both were on the State by telephone; and present, and could not be because officers continuance, respectfully had it never sought before a motion for co- date the requested given the same case be Ellen Edwards ready to received, time be defendants at that and would March proceed way one that case. another with sought by upon
It was continuances background previous this two continuances, in granted agreement” “by and five defendants very addition to the to the co-defendants granted two continuances morning, that the trial court stated:
“I don’t I do to communicate know what can trial. So I mean Attorneys sayI this court that when motion for continuance is denied.” State The The trial court State’s evidence. inquired then as to the key itsof responded the absence that it virtue of put had none to on witnesses. prosecutor The stated: witnesses we have no are for prepared
“Mr. Romano: We court. testify? your Court: wish client to you Do do, Yes, I representing
Mr. Morse defender [public Edwards]: Judge.” behalf,
Thereafter, Edwards, sworn and her called on own court then arrest. The testified as her version of the circumstances and which the inquired as to would cross-examine whether State prosecutor responded: Honor, states for respectfully
“Mr. Romano: Your controversy legitimate record we case or do not believe there’s questions. before Court and we have no argue? right, argument? “The Court: All wish to [sic] record, State, party Mr. Romano: The states we are argument.” this proceeding and we have no [sic] The trial she guilty Edwards not thereafter was discharged. contends, circumstances, foregoing under the that defend “put
ant was not her exposed jeopardy, relying to trial” so as to have upon People v. 81 Ill. 2d N.E.2d 543, 394 Shields People v. Dellecarto 67 Ill. App. Shick *3 App. 2d 285. People appears provide Deems necessary guidelines Deems, for In appropriate disposition an of this case. defendant was indicted for knowingly receiving property, stolen and on the date for conceding set trial charges, the State to dismiss the moved that defendant charge, was not an guilty of that but that indictment would sought be against him for be ready theft which the State would prosecute within a Notwithstanding week. the State’sadmission that the defendant did not charged, commit the with which offense he was charge demanded an original immediate trial on the and court, continuance, trial likening request the State’s motion to a for decided that defendant if go prepared entitled to trial he was do so. The trial court called the despite protestations. case trial Defendant waived a jury trial. witnesses to judge When called for sworn, only so, be again testify. defendant did but he did The State not indicated it had then found no witnesses to call. The trial court A guilty acquitting not him. subse judgment and entered its quent grounds, indictment for jeopardy theft was dismissed on double from seeking acquittal which the of both and appealed reversal reversal. court,
In upholding adjudged by appellate the reversal observations, among others supreme following court in made the (81 389-90): Ill. 2d none ‘acquittal,’ bore judge
“While the denominated his action not proceedings were except those characteristics the label. The * * * an attempt by the State to convict defendant. sham, an artifice proceeding The first was a ‘trial’held at the of a dismissal employed by achieve the result Thomas prejudice prosecution [People which for want of v.] authority [(1975), have the App. 907,] 24 Ill. had held he did not * * * to order. simply are clause protected by jeopardy the double interests jeopardy is that in this rule threatened case. traditional is sworn and the attaches in the first witness a bench when predicated is begins That rule to hear evidence. [Citations.] whose upon normally an individual that the toitness fact first whose prosecution witness testimony part the State’s case—a jeopardizing appearance incriminating presentation a part Here, him- the defendant only person sworn was defendant. self, intro- any type was testify. and he No evidence of did duced, during these no time it is that defendant was at clear guilty any offense.” proceedings danger being (Emphasis supplied.) bar, proceedings in the participate the case at the State refused to activities, as any prosecutorial
and declined itself in to involve mantle assume the authority Deems. The trial without court here was (Ill. Const. prosecutor; Constitution that role is reserved to II, 5). People §1) art. Stat. statute Rev. v. Ruiz 78 Ill. cert. denied App. 3d 597; v. Rotramel gave the stand and voluntarily Defendant in the took instant case she lawyer such felt exculpatory by her testimony questioning under questions she wished give. asked The trial court if wished to posture maintained its When asked he of noninvolvement. Honor, cross-examine, attorney responded, “Your the assistant state’s controversy before we do not case or legitimate believe there’s a whether Court the trial court asked questions.” and we have no When * “* * *4 attorney responded argue, wished to assistant state’s we No argument.” are party not have no proceeding to this and we argument not direct was trial court did presented by the defense. The client asked, your wish you “Do simply take the stand but testify?” having already asserted Nor surprisingly, light in of the that it for defense go would not counsel prosecution, forward with the “Yes, do, entirely self-
responded, Judge.” “testimony” I was Defendant’s serving in in related of view of the absence the facts she unremarkable any suggestion a element have had have been vital which would theft, proved charge namely, under the intent. fact, 1.) principal of intent the absence of evidence was the 16— stated, instance, “acquittal” basis in in which it court’s this among guilty, proof
“Ellen Edwards is of intent other there’s no things.” patent The instant distinction between the case and defendant, Deems that in no testimony was elicited from lawyer’s whereas here defendant did take the stand and answer her questions. here, however, Under set forth presented the circumstances above, it is difficult election to see how either in law common sense her testify prosecution exposed jeopardy, absence of can have her to single or double. origin history jeopardy again of the double clause was
recently States v. United Supreme reviewed the United States Court in Scott There, 437 U.S. 57 L. S. Ct. the court Ed. 2d noted the purpose underlying prohibition against jeopardy, double citing and quoting from Green v. United States 187-88, L. Ed. 78 S. stating: Ct. idea, underlying deeply ingrained
“The that is at one Anglo-American least the system jurisprudence, all its not be power resources should repeated attempts allowed to make an individual convict offense, alleged for an him thereby subjecting to embarrass- ment, expense and live a compelling ordeal and him to continuing anxiety insecurity. state of . ..” ’[Citation.] Upon consideration, fuller this now of we are the view Green, language from circum- entirely appropriate while in the stances of that opinion, principle expanded is not which can be a include situations for the responsible which the defendant 95-96, prosecution.” (437 second 98 S. U.S. 57 L. Ed. 2d Ct. 2196.) * “* ° presented canvas in the only depict case at bar fails to * * * with all power [making] repeated attempts resources and ° ° an convict alleged individual but offense who, at the court, posture invitation of the trial that in the knew proceedings guilty there was no chance for to have been found her beyond a reasonable to such apply jeopardy doubt. To clause double a portrait would be to form where exalt over This is not a case substance. government’s that it evaluated the evidence and determined legally e.g., States (see, United insufficient to sustain a conviction Martin Linen Supply Co. (1977), 430 51 L. U.S. Ed. 2d *5 412 1349, 1355), government presented
97 S. Ct. in but one which the any upon evidence whatsoever which the trial court could have based short, opinion, evaluation at all. In simply there was no trial. our therefore, v. People analogous (1980), this is in 81 situation to that 384, 390-91, Ill. 2d pursue appeal which the authorized to State was Supreme under 604(a)(1) 1(a)(2) Court Rule of the and section 114 — 110A, Code of Criminal Procedure of 1963. Ill. Rev. Stat. ch. 604(a)(1); par. 114-1(a)(2). Rev. Stat. ch. City Peoria v. Neither Davis (1976), Ill. App. 350 N.E.2d v. nor Hurlbert (1976), Ill. App. 354 N.E.2d
support procedure trial court’s appeal the instant case. The simply dismissed Davis sought because the State to reverse an adverse ruling on a preliminary quash suppress motion to a search warrant and evidence secured thereunder the trial court purported there to have after rendered a decision on the propriety merits. The issue as to the of the Davis, denial of a continuance opinion was never raised nor does the consider whether or not the participated in the trial that so-called place Likewise, took thereafter. those issues were not raised in Hurlbert.
Recognizing that a trial court must permitted be to maintain discre tionary power, circumstances, in appropriate deny if continuances recalcitrant defendant has been attempting to thwart the trial court’s efforts to (People King v. “move its calendar” 66 Ill. 2d cert. denied 54 L. Ed. 2d 98 S. 273), Ct. and a trial deny sought by court should continuances the State where a right defendant’s á speedy improperly trial will be obstructed (People v. Richards 454, 459-61, 410 833), neither of these Further, circumstances obtaining was the situation here. the State had announced its try intention to the three together. defendants No motion was severance, made or upon by ruled the trial court for and the other two defendants granted were five-day continuances to March 1980, the day same sought by the upon present which to its case against Edwards, facts, as well as the other Upon defendants. these difficult to any discern possible basis upon which court could be deemed to have exercising been discretion to move its calendar.
Accordingly, the trial court’s “discharge” of defendant Edwards vacated, and the cause remanded for trial on merits.
Reversed and remanded.
PERLIN, J., concurs.
Mr. STAMOS, dissenting: JUSTICE I respectfully Supreme dissent. 604(a)(1) Court Rule sets out the provision basic governing may appeal dispositions when the State trial court:
“In criminal cases or may appeal only from an order judgment dismissing substantive effect results in of which charge any grounds enumerated in section 114 —1 of the * * 110A, Code of Criminal Procedure par. 604(a)(1).) in supreme court, Love
Our
Ill. 2d
819, made clear that
grounds
in section
for dismissal enumerated
114 —1 are not
impede
appeal
all-inclusive and should not
the State’s
any trial court judgment,
constitute
“substantive effect” of which
a dismissal of the
Lawson
(See
information
indictment.
449, 455-56,
67 Ill. 2d
*6
1244.)
367
that
N.E.2d
The State contends
this judgment
acquittal
of
was in reality a dismissal
the
of
information
appealable
thus
under Supreme
604. Concluding
Court Rule
that the trial
court’s disposition
appealable,
is
argues
that the trial court acted
beyond its authority in “dismissing” the action where there was neither a
clear showing
process
of a due
explicit statutory grounds
violation nor
Lawson.)
(See
dismissal.
long
The State relies on a
line
cases
of
which
stand for
proposition
only
the trial court can
dismiss for
one
reasons
Code,
enumerated
section 114 —1 of the Criminal
or for a clear
process
due
People
1979,
38,
violation.
1;
See Ill.
Rev. Stat.
ch.
114 —
v.
Shields
(1979),
543,
cert. denied
76 Ill. 2d
394
(1980),
N.E.2d
U.S.
L. Ed. 2d
(witness
A trial judge’s disposition “acquittal” characterization of his as an rather than a “dismissal” is controlling (See on appealability. United States v. Scott 82, 96, 57 L. 98 S. Ct. Ed. 2d Rather, 2196.) it is the actual disposition: nature of the it is a whether “judgment the substantive effect of which dismissal the iildict [is a] (Love, ment.” 439.) at My review of Illinois authorities discloses but one case which is points on all bar; identical to that at the trial holds court’s disposition acquittal constitutes an appealable. and is therefore not In City Peoria v. Davis App. 39 Ill. 3d 350 N.E.2d testify “defendants were sworn to as masse each witnesses en stated he not guilty.” presented a People evidence because of ruling, immediately prior, suppressing evidence.
“Although People appeal have characterized their as one arising court, from a charges by dismissal of the defendants appeal judgment characterized the from a one guilty, a decision on the which is not appealable merits People. Having guilty, urge once been found not defendants right have no appeal appeal and hence the should be dismissed. case, It is well settled that after trial on merits in criminal a a Const,
there shall appeal judgment be no of acquittal. from * * * VI, §6; art. par. 3-4(1).) According to the trial court’s written order the defendants were each found not guilty discharged.’ conclude this ordered We judgment acquittal hearing after a on the merits and therefore Kapande, appealable 230, 177 not an (People v. judgment. 23 Ill. 2d 825.)” (39 Ill. App. 558.) The result in City Peoria consonant with those reasoning cases which have apparent progenitor considered the instant situation. The analysis this Thomas App.
97. Though Thomas dealt with a dismissal trial, reviewing prior to court considered the alternatives available to a trial confronted with request for a continuance on the scheduled date of trial: “Where the motion for a continuance has properly been denied the case should be trial, called for and if presented by no evidence insufficient evidence is People, then a judgment acquittal may be entered court.” (Thomas, In 908.) at Guido *7 18,
N.E.2d which also with to improper prior dealt a trial court’s dismissal evidence, hearing the court commented: we
“The conclusion have reached does not the court leave powerless to discharging pursu- control calendar. cases Besides ant rights, contempt to defendants’ court has to powers require the the to In appear. unlikely prosecuting the a officer event that being by should proceed refuse to to trial after ordered the court so, do the judge may proceed trial that to trial.” 11 order the case 1066,1070. Ill. App. 3d 300, 652, the Hurlbert (1976), 3d court,
trial impaneled, after the was ordered the State to jury sworn and trial, proceed brought (aggravated the charge not on the battery), charge put but a The State refused to (simple battery). on lesser on a to amend the indictment evidence after the court denied motion trial greater court that the charge. reviewing reinstitute the trial
415 judge’s construing only charging action in the lesser the indictment as proceed offense was erroneous and the State should have been allowed to on greater Nevertheless, reviewing offense. court determined Thus, jeopardy already had though attached. even the trial in ruling charge mistaken his aggravated that the did not indictment battery charge, and the State retrial of put refused to on evidence either had charged jeopardy defendant was barred on the because offense 141, 143, 7 Fong 369 L. Ed. Foo v. States (1962), attached. See U.S. United 631, 629, errone 671, 2d 82 Ct. (although judgment S. 672 was entered States v. see also United ously, jeopardy); retrial was barred by double 642, Martin Linen Supply Co. L. 2d 51 Ed. 650-51, 97 1349, 1354-55, S. Ct. v. Ball approval United States quoting with 163 U.S. 16 (“[a] 41 L. S. Ct. Ed. * * ° acquittal reviewed, otherwise, verdict of could not be on or error without putting in violating jeopardy, thereby twice [a defendant] accord, Bryant State v. Constitution”); 31 Ohio Misc. 264; N.E.2d DiPasquale Commonwealth Pa. 246 A.2d 430.
The result in both lines of cases is sustained review pertinent statutes. specific Section 114—1 of the Criminal lists ten Code grounds for trial court’s dismissal on defendant’s the State’s motion of prosecution. It further provides court some extent of discretion to the trial in granting a dismissal. only provision allowing dismissal where State is not ready proceed 1(a)(1): has “The defendant 114 — placed not been compliance on trial in 103—5 of this Code.” Section 1(a)(1).) 103—5 is the Section 114 — Speedy Act, which, Trial days essentially, allows the State either 120 160 days (dependent defendant) bring on the incarceration status dismissal, only to trial. Thus the statutory ground for indicate, cases listed in Speedy supreme earlier Act. Our court Trial People v. Lawson held power a trial has “inherent” dismiss where there has Ill. process (67 been a constitutional or due violation. Love, 449,456; see right necessarily at 443 (statutory speedy does not delimit argued in instant right).) constitutional Defendant case has not either of grounds Accordingly, these as a basis for the trial court’s action. “dismissal,” if “acquittal” defendant’s court’s actuality were dismissal, action jeopardy would be an would unauthorized and double not bar retrial.
Nevertheless, case, below advanced proceedings the instant beyond (1980), 81 Ill. v. Deems stage dismissal considered v. Shields Rather, taking swearing and the with the of a witness evidence, holdings proceeded point to a where trial below *8 416 652, City 300, 354
People v. (1976), App. 41 Ill. N.E.2d Hurlbert 3d of apposite. 350 N.E.2d are Peoria v. Davis (1976), App. 39 Ill. 3d with the City Peoria consistent Hurlbert also rule the issuance of governing controlling statutory provision. Section 114— continuances, provides part: relevant 30 than
“(c)
by the State more
A motion for continuance made
arraignment may
granted
be
days
when:
after
«
# «
* * *.
(2) A
material witness
unavailable
o a
that criminal cases
(h) This
to the end
Section shall be construed
rights of the
diligence
with the
are tried with due
consonant
trial.”
impartial
fair and
speedy,
defendant
and the State to a
4(c), (h).)
(Emphasis added.)
Stat.
Rev.
114 —
deny
to issue or
The statute
the trial court
the discretion
affords
if a
illusory grant of discretion
merely
continuances. This would be a
attempt
to move
prosecutor
recalcitrant
could thwart the trial court’s
right
calendar of
It
that a trial court has
long
cases.
has
been held
defendant,
forcing
if
refuse a
even
it amounts to
continuance to
Ill. 2d
(See People King
v.
(1977), 66
to trial
witnesses.
without
551, 557,
894, 54 L. Ed. 2d
cert. denied
(1977),
363 N.E.2d
is no
(defendant may
98 S. Ct.
trial where there
273
be forced to
is evaluated on
showing
diligence;
judge’s
denial of a continuance
v.
accord,
Mitchell
ruling);
facts
his
and circumstances attendant
v. State
1254, 1256;
Traylor
(1979),_Ind__,_,
398 N.E.2d
50, 52,
(1975),
616.)
164
These cases have
App.
Ind.
326 N.E.2d
rather on
focused on
a defendant
to trial but
propriety
forcing
(See
abuse of discretion.
whether
denial of a continuance was an
175, 178, 174
v.
(action
804
People
Poland
(1961),
22 Ill.
2d
without
judge
granting
will not be disturbed
denying
or
continuance
v.
App.
70 Ill.
Peterson
discretion);
clear abuse of
light
(defendant’s
is considered
motion
defendant,
“embarrasses the
diligence
shown
whether the denial
rights”).)
his
preparation
prejudices
of his case and
deny
to allow
policy
granting
judge
behind
the trial
the discretion
”
“
avoiding delays’
system in
judicial
continuances is the
‘interest of the
350, 362 N.E.2d
Commonwealth v. Grieco
(see
5 Mass.
however,
“the ends
1208);
a continuance where
a court should not refuse
(Bullistron Augustana Hospital
justice clearly
it.”
require
v. Davis
(civil case);
see
App. 3d
367 N.E.2d
right
314.) Acknowledging
the established
defendant,
forcing him
thereby
deny
of a trial
a continuance to
right and
trial,
the same
court has
question
is whether
respect
Richards
discretion
State. See
The State either Hurlbert citing distinguishing while not Peoria, or City Deems, that Deems controls the instant case. In our supreme court held that jeopardy had and did not bar not attached remand for testimony where witness was sworn but was adduced. The Deems result entirely proposition consistent with the Deems, that jeopardy has prosecutor attached the instant In case. Deems, attempting charges Unlike against dismiss the defendant. bar, in the case at prosecutor proceed to trial on intended charges against defendant, only at the State. time more convenient trials, Both cases involved and in was sworn. bench both cases defendant Deems, case testify. however, In the instant defendant did In in holding those testified. clearly excepts from Deems, In instant 390.) at (See stances where evidence introduced. introduced; evidence case sworn the trial court testimony was U.S. v. Scott (1978), 437 United States (See insufficient convict. after (“To 57 L. Ed. a second trial permit S. Ct. 2193-94 been, would acquittal, may have acquittal however mistaken Government, vastly present an with its unacceptably risk high resources, though superior so ‘even might wear down the ”).) innocent terminated may guilty’ he be found When inno guilt or proceedings on his of factual the basis of determination cence, jeopardy against double provisions protected by the interests sworn first witness Shields, (See when arose. attaches (jeopardy at 546 Scott, v. United 99; ass and court at evidence); also begins hear see Serf States 273-74, S. Ct. U.S. 43 L. Ed. 2d (in 1062-63 trial, hear nonjury begins when the jeopardy attaches evidence).) the double have considered accord with those cases which jeopardy case, I instant implications presented instant find that the by the *10 appeal is provisions appeal permitted statutory barred. This is not governing dismissals; appeal appeal fundamentally, the State’s from more disallowed notions of Thus no review jeopardy. double judge’s might discretion, exercise of questionable no matter how appear, lies. I appeal. would dismiss the
In re Plaintiff-Appellee, MARRIAGE JANETZKE, OF ESTLENE JUNE Defendant-Appellant. JANETZKE,
JAMES JOSEPH (5th Division) First 80-1917 District No.
Opinion filed June