APPEAL from the Circuit Court of Cook County; the Hon. JOSE R.
VASQUEZ, Judge, presiding.
MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
These consolidated appeals are taken by the state from dismissal of theft complaints (Ill. Rev. Stat. 1975, ch. 38, par. 16-1(a)(1)) against defendants, Yvonne Walker and Benny Chapman. The issues presented for review are (1) whether the trial court's order is appealable by the State, and (2) whether the trial court was authorized to dismiss the complaints under the circumstances presented.
The complaints charged defendants with theft of $30 from Patricia Gates on November 15, 1976. Nine days later the case was initially presented to the trial court. The assistant state's attorney requested a continuance and the following colloquy ensued:
"MR. FEDERMAN [assistant state's attorney]: Well, the complaining witness is Patricia Gates; I spoke with her, she had a doctor's appointment for two o'clock with Dr. DeBois. She said if she could get out of it she would call me back and she does want to come in and testify in this case; and it's the first time up. She wasn't given this date to come to court.
MR. FLIESCHER [defendants' attorney]: If I may refresh the Court's recollection, the purpose of the hearing is really a bond hearing; and the statement that I made earlier is that if the State is granted a continuance chances are the defendants will have to spend six days in custody because of the holiday weekend.
THE COURT: The State's motion is denied.
MR. FEDERMAN: Well, your Honor, I can't S.O.L. this case, I just can't. He was arrested yesterday; the usual procedure is not for the complaining witness
THE COURT: I will dismiss them; go on.
MR. FEDERMAN: If you want to give them an "I" bond you can.
THE COURT: I S.O.L. the case and "
Before we might consider whether the trial court acted properly, it is necessary to consider defendants' motion to dismiss this appeal urging that the order which the State challenges was not appealable because the State was allowed an opportunity to reinstate the charges, thereby rendering it a non-final order.
The dismissal with leave to reinstate was predicated on the State's failure to conduct an immediate prosecution of the matter. The trial court denied the State's motion for a short continuance because the complainant had a conflicting doctor's appointment. Thereupon, without a motion to dismiss, the trial court on its own dismissed the complaints and struck the cases with leave to reinstate.
In People v. Stewart (4th Dist. 1974), 23 Ill. App.3d 248, 318 N.E.2d 639, the court held that a similar order lacked finality because the order was not entered with prejudice, and the State might have refiled the matter. In People v. Mitchell (1st Dist. 1975), 32 Ill. App.3d 650, 336 N.E.2d 44, the court dismissed two appeals by the State from orders striking criminal charges with leave to reinstate, although the merits of a related appeal concerning the suppression of evidence were considered. The court merely stated that the orders ...