APPEAL from the Circuit Court of Will County; the Hon. ROBERT
BUCHAR, Judge, presiding.
MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
This is an appeal from the circuit court of Will County which after trial by jury entered judgments of guilty against the defendants, Russell Kirkley and Robin Kirkley, for the offenses of unlawful possession of a controlled substance and unlawful possession of cannabis. The trial court imposed sentences of imprisonment of not less than 4 years nor more than 6 years on each defendant for the offense of unlawful possession of a controlled substance and sentences of imprisonment on each defendant of not less than 2 years nor more than 6 years for the offense of unlawful possession of cannabis. The sentences imposed on each defendant were to run concurrently.
1 The defendants at the time of their arrest on January 23, 1975, were husband and wife. Subsequent to their arrest the defendants were divorced and in this appeal one brief was filed on behalf of both defendants and one only on the behalf of the defendant Russell Kirkley. The issues assigned as error in these briefs are not identical but this court has been requested to consider all issues raised in the respective briefs as being applicable to both defendants. We are of the opinion that this request should be granted since the record discloses that the procedural and factual aspects of the arrest, trial and sentencing of the defendants are identical in every respect. The State further acknowledged during oral argument that the record supports such a finding.
The first issue which we are called upon to consider and determine is whether the defendants' constitutional right to a prompt preliminary hearing was denied and if so whether a remedy for such a denial exists.
As we have previously stated, the defendants were arrested on January 23, 1975. On January 27, 1975, the defendants made a motion for a preliminary hearing and the trial court set a hearing for the same on February 20, 1975. On this latter date the People moved for a continuance of the preliminary hearing. The defendants objected and demanded a trial. The trial court rescheduled the preliminary hearing for March 10, 1975. On the scheduled date, to-wit, March 10, 1975, the defendants were present in court ready to proceed with the scheduled preliminary hearing; however, on said date the defendants filed a motion to quash a search warrant and to suppress evidence obtained therefrom. By order of the trial court the preliminary hearing proceedings were continued until resolution of the defendants' motion regarding the search warrant and the suppression of evidence. At this time the case was also transferred to the general division of the circuit court for assignment. The following day the case was assigned to a trial judge for purpose of hearing defendants' motion to quash and suppress and was further transferred to what was known as Division "B" for a preliminary hearing. On April 21, 1975, there was to be a hearing on the motion to quash and suppress evidence. The defendants were present in court and announced that they were ready for the hearing, however, the trial court continued the cause to June 6, 1975. On June 5, 1975, over objection of counsel for the defendants the trial court again continued proceedings in the case to August 22, 1975. On July 18, 1975, the defendants were indicted by a grand jury, thereby vitiating the necessity of a preliminary hearing.
Section 7, article I, of the 1970 Illinois Constitution provides:
"No person shall be held to answer for a crime punishable by death or by imprisonment in the penitentiary unless the initial charge has been brought by an indictment of a grand jury or the person has been given a prompt preliminary hearing to establish probable cause."
The above provision of the constitution was submitted to the convention by the Committee on Style, Drafting and Submission. The Committee had made a change in the wording of the proposed draft and explained the changes as follows:
"This change makes it clear that a person must either be charged initially by grand jury indictment or given a prompt preliminary hearing before being held to answer for a crime punishable by death or by imprisonment in the penitentiary." 7 Record of Proceedings, Sixth Illinois Constitutional Convention 2600.
Pursuant to our constitutional mandate our legislature has provided for proceedings which are to occur after an accused person is arrested. Our statutes provide that such proceedings shall be commenced without unnecessary delay. (See Ill. Rev. Stat. 1973, ch. 38, pars. 109-1, 109-2, and 109-3.) It should further be noted that under the constitutional provision providing for a preliminary hearing a defendant held on a criminal charge punishable by imprisonment in the penitentiary must be afforded a prompt probable cause determination of the validity of the charge either at a preliminary hearing or by an indictment by a grand jury. People v. Kent (1972), 54 Ill.2d 161, 295 N.E.2d 710; People v. Hendrix (1973), 54 Ill.2d 165, 295 N.E.2d 724.
In the instant case each of the defendants was charged by a two count criminal complaint of committing offenses which are punishable by imprisonment in the penitentiary. Four days after they were arrested they appeared in court and specifically moved for a preliminary hearing. No preliminary hearing was ever held, but instead 176 days after their arrest they were indicted by a grand jury.
In the case of People v. Howell (1975), 60 Ill.2d 117, 324 N.E.2d 403, our supreme court was confronted with a situation where a defendant who was arrested in connection with an attempted armed robbery and shooting in a tavern was held in jail without preliminary hearing until he was indicted 65 days later. The court made the following observation:
"Without question, holding the defendant in this case under a criminal charge for 65 days without giving him a prompt preliminary hearing or presenting his case to a grand jury violated the letter and intent of section 7 of article I of the 1970 Constitution." People v. Howell (1975), 60 Ill.2d 117, 119, 324 N.E.2d 403, 404.
In the case of Howell the supreme court noted that the delay of 65 days was the most severe violation of section 7 (section 7 of article I of the 1970 Illinois Constitution) that had been called to the court's attention, but held that the defendant was precluded from raising the question of the violation ...