APPEAL from the Circuit Court of Williamson County; the Hon.
WILLIAM A. LEWIS, Judge, presiding.
MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:
The circuit court of Williamson County dismissed the indictment pending against the defendant-appellee, Earl R. Moore, on the grounds that he had been deprived of his right to a prompt preliminary hearing under section 7 of article I of the Illinois Constitution of 1970 (Ill. Const. art. I, § 7). The State appeals pursuant to Supreme Court Rule 604(a)(1). (Ill. Rev. Stat. 1973, ch. 110A, § 604(a)(1).) The sole issue presented for review is whether the trial court erred in dismissing the indictment.
On March 26, 1974, the State filed an information against the defendant-appellee, charging him with unlawful possession of cannabis. On March 27, 1974, the defendant appeared in open court and requested a preliminary hearing. To allow the defendant to retain counsel the court set April 10, 1974, as the date for this hearing. On April 4, 1974, notice was mailed to the defendant advising him that the preliminary hearing had been reset for April 23, 1974. On April 18, 1974, the defendant's counsel filed a notice to produce witnesses. On the same day the grand jury indicted the defendant, charging him with the identical offense alleged in the information. At the preliminary hearing on April 23, 1974, the State advised the court that because of the intervening indictment, it would not present evidence to establish probable cause. Upon the defendant's motion, the court dismissed the indictment.
The State contends that the trial court erred in dismissing the indictment pending against the defendant for failure of the State to give the defendant a prompt preliminary hearing to establish probable cause.
Since there was no constitutionally cognizable right to a preliminary hearing prior to the effective date of section 7 of article I of the 1970 Constitution (People v. Camel, 59 Ill.2d 422, 322 N.E.2d 36; People v. Hood, 59 Ill.2d 315, 319 N.E.2d 802; People v. Petruso, 35 Ill.2d 578, 221 N.E.2d 276), it must be determined whether section 7 of article I of the 1970 Constitution requires that a preliminary hearing be conducted after an indictment has been returned by a grand jury. Article I, section 7, of the 1970 Constitution provided in pertinent part as follows:
"No person shall be held to answer for a crime punishable by death or by imprisonment in the penitentiary unless either the initial charge has been brought by indictment of a grand jury or the person has been given a prompt preliminary hearing to establish probable cause." Ill. Const. art. I, § 7.
"The constitutional reference to a right to a preliminary hearing is new. As we read the provision before us it appears to be designed to insure that the existence of probable cause will be determined promptly either by a grand jury or by a judge."
We quoted the foregoing language in People v. Howell, 16 Ill. App.3d 989, 307 N.E.2d 172, 174, aff'd, 60 Ill.2d 117, 324 N.E.2d 403. In Howell we found a violation of the defendant's right to a prompt determination of probable cause on the grounds that no preliminary hearing was conducted and the defendant was not indicted until 65 days after his arrest. Nevertheless, relying upon the supreme court's language in People v. Hendrix, 54 Ill.2d 165, 295 N.E.2d 724, we did not invalidate the defendant's conviction.
In People v. Hendrix, the defendant filed a motion to dismiss the indictment returned against him by the grand jury on the ground that he had been originally charged by a criminal complaint, rather than by indictment, and that no preliminary hearing had been held. The trial court granted the motion to dismiss and, in its amended order, declared that that portion of the Criminal Code of Procedure (Ill. Rev. Stat. 1971, ch. 38, par. 111-2(a)) which provides "If the defendant is charged with the commission of a felony * * * a preliminary hearing * * * shall be conducted * * * unless a Bill of Indictment upon the same felony charge is returned in open court prior to such hearing * * *" had been rendered unconstitutional by section 7 of article I of the Illinois Constitution of 1970. An appeal was taken directly to the supreme court pursuant to Supreme Court Rule 603 (Ill. Rev. Stat. 1971, ch. 110A, par. 603). The supreme court reversed, stating:
"If the defendant was to be prosecuted for the offense, he had to be indicted. Without an indictment he could never have been `held to answer,' or brought to trial, and the assertion of the public defender, acquiesced in by the trial judge, that the State violated the constitution by indicting the defendant, is patently unsound." 54 Ill.2d 165, 169, 295 N.E.2d 724, 726.
The Fourth District Appellate Court interpreted the Hendrix decision in the following manner:
"* * * the court found that, notwithstanding the fact that a preliminary hearing has a constitutional character (Ill. Const. (1970), art. I, § 7), it is not an absolute prerequisite to criminal prosecution. An indictment is. In that case [Hendrix] the court held when a defendant is properly indicted the necessity for a preliminary hearing to establish probable cause is vitiated." People v. Gooding, 21 Ill. App.3d 1064, 1068, 316 N.E.2d 549, 551.
A like result was reached by the Second District Appellate Court in People v. Williams, 19 Ill. App.3d 136, 138, 310 N.E.2d ...