APPEAL from the Circuit Court of Champaign County; the Hon.
SARAH M. LUMPP, Judge, presiding.
MR. JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:
Rehearing denied July 21, 1971.
The State appeals from a magistrate's order which dismissed an information and discharged the defendant.
The information at issue alleges criminal trespass to land in that the defendant did remain upon the property of the Champaign police station after being given repeated notice to leave in violation of ch. 38, par. 21-3; that defendant obstructed the performance of official duties of known police officers in violation of ch. 38, par. 31-1; and disorderly conduct in that he did stand and block areas of the police station making loud noises after being asked three times to leave in violation of ch. 38, par. 26-1(a).
On May 27, 1969, defendant was arrested in the City jail in Champaign without a warrant. A complaint was thereafter filed charging criminal trespass to land, ch. 38, par. 21-3, Ill. Rev. Stat. 1967. This complaint was docketed as cause "892". The facts concerning such arrest appear in the record only as allegations filed by defendant and designated "Plea in Abatement". From said allegations it appears that on that date there was some civil disturbance in the City and a number of persons were arrested. It is alleged that defendant appeared at the police station with others to inquire who had been arrested, the reasons for the arrests and the amount of bail for those arrested. It is alleged that defendant was arrested when he persisted in making the inquiry. The complaint alleges that the defendant remained upon the property after having been given repeated notice to leave.
The defendant was taken before a magistrate and arraigned, at which time he pleaded not guilty. The cause was set for trial on July 7, 1969, and defendant was released on bond. Despite the fact that defendant was present at the time of such setting, he did not appear on the trial date and his bond was declared forfeited and attachment issued. On September 12th, defendant filed a motion to vacate the bond forfeiture and quash the body attachment. Upon the showing made, such action was ordered on September 16, 1969, and the cause was set for trial on October 20th.
On October 9, 1969, in cause "892", the State's Attorney filed an "Amended Information" containing the same three charges of statutory violation hereinabove recited. The record shows the mailing of a copy of such "Amended Information" to defendant's counsel on October 9th. Thereafter, on October 27th, the information at issue was filed and docketed as cause "1915". This information pleaded the same conduct and charges as the "Amended Information" docketed "892". Summons issued and was served.
On November 6th, in cause "892", defendant filed "Objections to Amended Information and Plea in Abatement" alleging certain matters of record, including the filing of the information designated "1915", and the following matters which are argued here: that the "Amended Information" designed "892" was filed without leave of court and without notice to defendant. As noted, the record shows affidavit of mailing of copy to counsel. It is further alleged that prior to the filing of the "Amended Information" in "892", an Assistant State's Attorney talked with defendant's counsel on the telephone concerning a plea of guilty and a recommendation of a fine only to the count for trespass. It is alleged that the Assistant State's Attorney stated that the police insisted on prosecution, and that if defendant did not plead guilty he would be "charged with every possible offense". It is alleged that defendant's counsel told the Assistant State's Attorney that in his opinion defendant was not guilty of trespass. The "Plea of Abatement" then charges that the prosecution was motivated by the insistence of the police, that defendant was denied liberty without due process and equal protection of the law under the Fourteenth Amendment; that defendant was being prosecuted for the exercise of the rights provided under the First, Fifth and Sixth Amendments to the United States Constitution. There is no specification of which of the several rights in the latter respective amendments are concerned in this proceeding. The "Plea in Abatement" then asks that the proceedings in each of the docketed causes be abated and dismissed and asks for an evidentiary hearing upon the issues.
On November 12th, a written order designated "Final Judgment" was entered in cause "892", finding that there was an oral motion to file the "Amended Information" and that defendant objected. The order sustained the objections and denied leave to file Counts II and III of such information, but leave was granted to file Count I, i.e., criminal trespass to land. Upon the motion of the State's Attorney, Count I was dismissed and the defendant discharged. This order is not appealed.
On November 12th, defendant filed, in cause "1915", a "Plea in Abatement" which is apparently identical in form and substance to that filed in "892". The State's Attorney filed an answer in which it was denied that during the telephone conversation he said that he would file "every possible charge", but did not say that the prosecution intended to file charges of disorderly conduct and of obstructing justice because there might be some difficulty in proving trespass to land.
A written order designated "Final Judgment" was filed on November 14th, sustaining the objections and "Plea in Abatement". Finding that the State's Attorney elected to stand upon the information, the defendant was discharged. The State appeals from this order.
Respective counsel have diverging views of the state of the record and of the issues passed upon by the magistrate. The defendant states that one or more evidentiary hearings were heard upon the allegations of the "Plea in Abatement", while the State's Attorney asserts that there were not. There is no report of proceedings, and no record of such happenings certified by the magistrate. We have searched the respective final orders and find no reference to evidentiary hearings, albeit there is reference to statements and arguments of counsel.
• 1 The State's Attorney contends that the sole issue concerns the authority of the prosecution to dismiss an information prior to the time jeopardy attaches and to file a new information. He urges that after the original complaint designated "892" was filed by an individual police officer, the filing of the "Amended Information" was necessary in order to comply with the provisions of ch. 38, par. 3-3, Ill. Rev. Stat. 1967, i.e., that where several offenses within a single jurisdiction are known to the prosecuting officer, at the time of commencing prosecution, there must be a single prosecution. For puposes of this section the State's Attorney is the "responsible prosecuting officer". People v. Pohl, 47 Ill. App.2d 232; 197 N.E.2d 759; People v. Bressette, 124 Ill. App.2d 469, 259 N.E.2d 592.
It appears that within the statutory provision of ch. 38, par. 3-3, the document entitled, "Amended Information" was, in fact, the original information and was not, in fact, an amended ...