Appeal from the Circuit Court of the Twelfth Judicial Circuit
of Will County, Magistrate Division; the Hon. JOHN LANG, Judge,
presiding. Reversed and remanded with directions.
This cause originated as a result of the issuance of three traffic tickets citing Eugene Forest Miner for driving with a revoked driver's license, for disobeying a stop sign, and for operating a motor vehicle while under the influence of intoxicating beverages. Defendant moved for a preliminary hearing. The People filed a verified complaint but refused to participate in a preliminary hearing. The court then dismissed the complaint as a result of the refusal of the People to conduct a preliminary hearing. On appeal in this cause, the People contend that the statute does not provide for a preliminary hearing where the judge presiding over such preliminary hearing has jurisdiction to try the offense charged. It is contended that a preliminary hearing is authorized only in those misdemeanor cases where the judge presiding over the preliminary hearing does not have jurisdiction to try the offense.
The record discloses that the defendant, Eugene Forest Miner, was brought before a magistrate of the Twelfth Judicial District of Will County for arraignment. He thereafter asked for and was granted a continuance so that he could obtain counsel. A few weeks later defendant appeared with his counsel who moved that People file a verified complaint and for a preliminary hearing. The verified complaint was filed but People objected to a preliminary hearing in writing. Such objections were overruled and the People thereupon refused to participate in a preliminary hearing. On defendant's motion to dismiss, thereafter, for failure of the People to proceed with the preliminary hearing, the court dismissed the complaint. The People then perfected this appeal to test the court order so dismissing the complaint for failure to proceed with the preliminary hearing.
In Chapter 38, § 109-1 of 1965 Illinois Revised Statutes, it is provided as follows:
"(a) A person arrested without a warrant shall be taken without unnecessary delay before the nearest and most accessible judge in that county, and a charge shall be filed. A person arrested on a warrant shall be taken without unnecessary delay before the judge who issued the warrant or if he is absent or unable to act before the nearest or most accessible judge in the same county.
"(1) Inform the defendant of the charge against him and shall provide him with a copy of the charge.
"(2) Advise the defendant of his right to counsel and if indigent shall appoint a public defender or licensed attorney at law of this State to represent him in accordance with the provisions of Section 113-3 of this Code.
"(3) Hold a preliminary hearing in those cases where the judge is without jurisdiction to try the offense; and
"(4) Admit the defendant to bail in accordance with the provisions of Article 110 of this Code."
In Chapter 38, § 102-17, 1965 Illinois Revised Statutes, it is provided:
"`Preliminary examination' means a hearing before a judge to determine if there is probable cause to believe that the person accused has committed an offense."
The charges against the defendant in this cause were for violation of chapter 95 1/2, §§ 6-303, 128, and 144, 1965 Illinois Revised Statutes. Under section 6-303, there is a penalty upon conviction of imprisonment of not less than seven days nor more than one year and a fine may be imposed in addition thereto of not more than $1,000. Section 128 provides for a penalty upon conviction of a fine of not less than $1 nor more than $100 for a first conviction; for a second conviction within one year thereafter such person could be punished by a fine of not less than $25 nor more than $200; and upon a third or subsequent conviction within one year after the first conviction, such person could be punished by a fine of not less than $100 nor more than $300 (section 234). Section 144, referred to, provides for a penalty upon conviction of imprisonment for not less than two days nor more than one year or by a fine of not less than $100 nor more than $1,000 or by both such fine and imprisonment. In a second or subsequent conviction, defendant could be punished by imprisonment for not less than 90 days nor more than one year and in the discretion of the court, be fined not more than $1,000.
It is noted that all of the charges against the defendant in this cause were for offenses classified as misdemeanors. The Magistrate Division of the Twelfth Judicial District, Will County, has jurisdiction to try the defendant on all of the cited charges (c 37, § 624, 1965 Ill Rev Stats). An administrative order adopted in such Circuit specifically vests the magistrate with such jurisdiction and authority. It is noted that subsection (b) of section 109-1, 1965 Illinois Revised Statutes, provides that the judge shall hold a preliminary hearing "in those cases where the judge is without jurisdiction to try the offense." Under the provisions of section 109-3 of said chapter 38, in the event following a ...