APPEAL from the Circuit Court of Cook County; the Hon. BRIAN
B. DUFF, Judge, presiding.
MR. JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 9, 1979.
Angela Dellecarto was charged with six counts of theft (Ill. Rev. Stat. 1975, ch. 38, par. 16-1(a)(1)) and six counts of public assistance fraud (Ill. Rev. Stat. 1975, ch. 23, par. 11-21). The case was called for trial in the circuit court of Cook County. After certain proceedings, which will be described, the trial judge ordered the case "dismissed for want of prosecution, with prejudice." On the defendant's motion, the dismissal was changed to an order of "acquittal" the following day. The State appeals from this ruling.
On April 15, 1977, this case came up for a conference with the trial judge for the purpose of discussing a possible plea of guilty. At the conference the court learned the defendant had quit school after the fifth grade at the age of 16. The court ordered a pretrial investigation and the case was continued by agreement to May 27, 1977. On that date a conference was again held in chambers. On May 27, 1977, the Assistant State's Attorney filed a memorandum of law discussing the requisite mental state necessary to convict the defendant and also addressing the issue of fitness to stand trial or to plead guilty. The case was continued by agreement to June 23, 1977, without subpoenas.
On June 23, 1977, the parties again appeared in court. The Assistant State's Attorney presented four options for the court's consideration. First, the State indicated that the court could accept the agreed plea of guilty; second, the court could declare Dellecarto fit to stand trial; third, the court could conduct a fitness hearing; and finally, the State suggested that the court could transfer the case to the Chief Judge for reassignment.
The court indicated it was not sure the defendant could form the necessary scienter to defraud because she had an I.Q. of 71, could not hear well, could not see without glasses and was "poor as a churchmouse." The judge concluded he did not wish to conduct a fitness hearing but instead would set the matter for trial and that the State would have the burden of proving intent at that time. A trial date of July 25, 1977, was set by agreement.
On July 12, 1977, the Assistant State's Attorney orally notified defense counsel and the courtroom clerk that he would not be ready to proceed with the trial on the designated trial date of July 25. On July 21, 1977, the State filed three motions with the court: a motion to recuse supported by the affidavit of counsel which disclosed the nature of the off-record conference; a motion to consummate the guilty plea; and a motion requesting a competency examination and hearing.
On July 25, 1977, the parties appeared in court. The Assistant State's Attorney gave defense counsel and the courtroom clerk an amended answer to discovery, a subpoena issued to the Treasurer of Lake County, Indiana, and a stipulation. The State also informed the judge that a number of motions had been filed with the court the previous week. The court indicated it had no knowledge of those motions; however, defense counsel stated he had received copies of them. The defense demanded that the trial commence, and also filed a written demand for trial. The court called a short recess to consider the motions.
When the court reconvened, the motion to recuse was denied. The court stated the Assistant State's Attorney's recollection of the conference, as set forth in the affidavit, was not the same as his own. The motion for a competency examination was declared moot, and the motion to consummate a guilty plea was denied. The judge then announced the case would proceed to trial.
The State insisted it was not prepared for trial, that none of its witnesses were present, and that some were in Indiana. The court said the State had received adequate notice that the case would go to trial on July 25. The Assistant State's Attorney said he did not realize the case had been set with subpoenas and also said he had informed defense counsel and the courtroom clerk that he would not be prepared for trial on July 25. Defense counsel indicated he had told the Assistant State's Attorney he would demand trial on July 25, but that he had also been warned that the State would seek a continuance.
The court again stated that a trial would commence that day. He told the Assistant State's Attorney he had plenty of time to prepare the case and there was no excuse for not being ready. The Assistant State's Attorney said he needed some time to call his witnesses. He asked that the case be put over to the next day, and the court refused to do so. The Assistant State's Attorney stated his witnesses had not been subpoenaed and the court indicated this was the State's fault because the case had been set with subpoenas and all the State had to do was request that particular persons be served. The Assistant State's Attorney then asked that the case be put over until 2 o'clock that afternoon to allow him time to obtain a witness to testify. The court also refused this request.
The Assistant State's Attorney was granted a 10-minute recess to call his office. When court reconvened, the Assistant State's Attorney announced the State would not proceed with trial because it was not prepared and had no witnesses present. The court told the Assistant State's Attorney that he had not been notified that the trial would not commence on that day. The Assistant State's Attorney apologized for this. The court asked if there were any State witnesses in the courtroom and ordered that any available witnesses be sworn. None were present to be sworn. Another Assistant State's Attorney said the State was not proceeding to trial and that they were not ready to make an opening statement. Defense counsel waived an opening statement and the court entered an order dismissing the case "for want of prosecution, with prejudice."
On the same day, the defense filed a motion asking that the dismissal order be amended. A hearing was held the next day and the court modified its prior order to one of "acquittal." The judge also stated he believed the State's motions, ruled on the previous day, were dilatory in nature.
The first issue we address is whether this court has jurisdiction to hear the case. The State argues the trial court exceeded its authority by summarily dismissing the indictments and discharging the defendant. The defendant contends this court is without jurisdiction to hear ...