APPEAL from the Circuit Court of Jackson County; the Hon.
RICHARD E. RICHMAN, Judge, presiding.
MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
This is an appeal by plaintiff, the City of Carbondale, from an order of the Circuit Court of Jackson County denying the City's post-trial motion to set aside the court's dismissal of a cause of action for violation of a city ordinance against defendant-appellee Bobbie J. Irving on the grounds of unjustified, excessive delay on the part of the City.
The facts necessary to our disposition of this appeal are as follows. On November 11, 1974, defendant was charged on a ticket issued by the Carbondale police department with driving while under the influence of alcohol or narcotic drugs within the city limits in violation of Local Ordinance 1-501. On December 16, 1974, defendant filed a demand for a speedy trial. On February 3, 1975, plaintiff filed an amended traffic complaint charging the defendant with driving while under the influence of intoxicating liquor, in violation of section 18-5-1 of the Carbondale Revised Code. The prayer for relief of the amended complaint requested "that the Defendant be fined in the penal sum of $500.00 plus the cost of these proceedings." *fn1 On June 10, 1975, the defendant filed a motion to dismiss pursuant to section 114-1(a)(1) of the Code of Criminal Procedure (Ill. Rev. Stat. 1973, ch. 38, par. 114-1(a)(1)), because of the City's failure to bring him to trial within 160 days of his demand for a speedy trial as required by section 103-5(b) of the Code (Ill. Rev. Stat. 1973, ch. 38, par. 103-5(b)). On September 11, 1975, after hearing arguments of counsel and the stipulation of the City that no delay following defendant's demand for speedy trial could be attributed to him, and being "otherwise fully advised," the court entered an order granting the motion to dismiss. On September 24, the City filed its post-trial motion, in support of which it cited City of Chicago v. Wisniewski, 54 Ill.2d 149, 295 N.E.2d 453 (1973), where the supreme court held that section 103-5 of the Code of Criminal Procedure does not apply to the prosecution of ordinance violation cases. On May 14, 1976, the trial court entered another order reciting that at the time of the initial hearing the attorneys for both parties had told the court that they were not aware of any higher court rulings on the question presented, that the court had reviewed Wisniewski and found it applicable to the instant case, and that it had been in error in its September 11 order. The order concluded:
"However, the court further finds, sua sponte, in accordance with Wisniewski that there has now been an excessive delay, for which there is no justification and which is in no way attributable to the defendant herein. For these reasons, this cause is now dismissed."
On appeal, the City contends that the court erred in concluding that there was excessive delay in bringing the defendant to trial. The City seeks to distinguish the instant case from Wisniewski, where the supreme court could find no justification for the violation of the requirement of section 1-2-9 of the Municipal Code (Ill. Rev. Stat. 1967, ch. 24, par. 1-2-9) that prosecutions for violations of municipal ordinances be tried "without unnecessary delay." The City argues in its brief that:
"* * * The record is absent of anything which indicates that there was no justification for the delay that was occasioned after the Defendant's arrest. But to the contrary, the record clearly indicates that there was indeed justification for the delay inasmuch as the Defendant had filed seven motions including a Petition for Substitution of Judge, all of which had to be acted upon before proceeding to jury trial on the merits. * * *"
The City's brief further states that the first 10 months of the period that elapsed after the arrest (that is, up until the court's original dismissal order of September 11, 1975) was attributable to the defendant. We think that such an argument is foreclosed to the City because of its stipulation, as recited in the September 11 order, that none of this delay was attributable to the defendant. After a review of the applicable law, we have concluded that the trial court acted within its discretion in dismissing the case because of unnecessary delay in bringing it to trial.
In Wisniewski, the supreme court said:
"We agree with the trial court's determination that section 103-5 of the Code of Criminal Procedure is not to be applied literally to prosecutions for violation of a municipal ordinance. (See City of Danville v. Hartshorn (1973), 53 Ill.2d 399.) That determination does not, however, dispose of the matter, for it does not follow that because section 103-5(b) is not applicable, a prosecuting municipality may proceed on its own convenience." (54 Ill.2d 149, 152-53, 295 N.E.2d 453, 454.)
The court concluded without elaboration that the analogous section of the Municipal Code, while less precise in its requirements than the speedy trial provision of the Code of Criminal Procedure, did not contemplate a delay of 17 months between arrest and trial, none of which was attributable to the defendant and for which the record indicated no justification.
The Hartshorn case cited in Wisniewski was the most recent occasion for our supreme court to discuss the somewhat amorphous nature of prosecutions for violations of municipal ordinances. There the court held that a defendant charged with resisting a police officer in violation of a local ordinance was entitled to trial by jury under the Civil Practice Act, but that whether the discovery provisions of that Act might be invoked in such a case was discretionary with the trial court. In reaching these conclusions the court said in part:
"The prosecution of municipal ordinances has been regarded somewhat ambiguously. Ordinances have long been treated as quasi-criminal in character but civil in form.
It is clear that in Illinois the procedure for exercising a municipality's authority to collect fines for ordinance violations is essentially civil. * * * While regarding ordinance-violation proceedings as civil in form, this court has traditionally characterized them also as quasi-criminal. [Citations.] This viewing of the municipal ordinance as a hybrid, which is civil in form, has persisted. * * *" 53 Ill.2d at 401-02, 292 N.E.2d at 384.
The court cited cases holding that the plaintiff in an ordinance violation case can appeal as in other civil cases, that application of certain provisions of the Civil Practice Act is proper, and that conviction of violating an ordinance does not require proof beyond a reasonable doubt. Village of Maywood v. Houston, 10 Ill.2d 117, 139 N.E.2d 233 (1956); Village of Park Forest v. Bragg, 38 Ill.2d 225, 230 N.E.2d 868 (1967); City of Decatur ...