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People v. Maher

OPINION FILED OCTOBER 16, 1979.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,

v.

MARTIN MAHER, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Winnebago County; the Hon. DAVID F. SMITH, Judge, presiding.

MR. JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:

The State appeals from an order entered by the circuit court of Winnebago County dismissing an information filed against defendant Martin Maher. Two issues are presented for review by the parties: (1) whether the State's notice of appeal was timely filed; and (2) whether the trial court ruled correctly in dismissing the information pursuant to Supreme Court Rules 504 and 505 (Ill. Rev. Stat. 1977, ch. 110A, pars. 504, 505). We reverse and remand for further proceedings.

The pertinent facts are as follows. On November 12, 1977, defendant Martin Maher was issued an Illinois uniform traffic citation and complaint by a Rockford police officer. The citation alleged that defendant had committed the offense of driving a motor vehicle while license suspended or revoked in violation of section 6-303 of the Illinois Vehicle Code (Ill. Rev. Stat. 1977, ch. 95 1/2, par. 6-303). The arresting officer set November 30, 1977, as the appearance date.

Defendant entered a plea of not guilty to the charge on November 14, 1977. At the same time, he waived his right to be tried by a jury and consented to a trial by the court, which was set for November 29, 1977.

On the hearing date, defendant and his privately retained counsel appeared in open court together with the arresting officer and an assistant state's attorney. Either at a pretrial status call or after the case had been actually called for trial (the parties are in dispute and the record is unclear), the prosecutor moved for a continuance on the ground that the Gold Seal records ordered from the Secretary of State, which would reveal whether or not defendant possessed a valid driver's license on the date of the alleged offense, had not yet arrived. Defendant objected to the continuance on the ground that it was without notice and that defendant was ready to proceed with the trial. The motion was denied. The prosecutor then moved the court to enter a dismissal of the charged offense, which was granted by the court apparently without objection by defendant or his counsel.

On December 7, 1977, the State requested leave to refile the charges in the form of an information, but this motion was denied by the trial court the same day. On December 12, 1977, the State filed a written motion for reconsideration of the December 7 order. This motion recited substantially the same facts as noted above. It also cited authority for the proposition that the refiling of a charge was not barred by the double jeopardy clause or the statutory former prosecution section (section 3-4 of the Criminal Code of 1961, Ill. Rev. Stat. 1977, ch. 38, par. 3-4), where a complaint was dismissed upon motion of the State prior to examination of the jury; *fn1 apparently the trial court had refused to allow the prosecution to refile the charge on double jeopardy grounds. On December 13, 1977, the motion was denied by the trial court without explanation.

However, on December 30, 1977, the trial court reconsidered its prior rulings and granted the State leave to refile the charge originally contained in the traffic citation in the form of an information, over objection by defendant's counsel. The information (which was filed the same date) alleged that defendant violated section 6-303(a) of the Motor Vehicle Code on December 12, 1977, by operating a motor vehicle while his driver's license was suspended.

On January 5, 1978, defendant filed a motion to dismiss the information with the circuit court. This motion contended, in essence, that further prosecution of the charged offense was barred on statutory double jeopardy grounds (section 3-4) of the Criminal Code of 1961, Ill. Rev. Stat. 1977, ch. 38, par. 3-4). The motion was granted by the court on January 11, 1978, following a brief hearing. The State then filed its notice of appeal from this order on February 13, 1978.

Before addressing the merits of the instant appeal, it is first necessary to determine whether we have jurisdiction to review the judgment order appealed by the State. Defendant has filed a motion to dismiss the appeal (which we previously ordered taken with the case), contending that the State failed to comply with the requirements of Supreme Court Rule 606 (Ill. Rev. Stat. 1977, ch. 110A, par. 606) by failing to file a notice of appeal within 30 days of either the order dismissing the complaint, entered November 29, 1977, or the order denying the motion to reconsider, entered December 13, 1977. Defendant recognizes that the State's notice of appeal was filed within 30 days of the January 11, 1978, order dismissing the information; however, he argues that the trial court immediately lost all jurisdiction over all substantive issues in the case after denying the State's motion to reconsider on December 13, and that it had no authority to allow the State to file an information on December 30, 1977. In essence, defendant contends that the State seeks review of an order the trial court had no power to enter, and that the State should have appealed earlier adverse rulings.

We do not agree. It is apparent to us that the dismissal order entered on November 29, 1977, could not be appealed by the State. The common law record shows that on that date, the cause was dismissed upon motion by an assistant state's attorney. This is in substance the entry of a nolle prosequi to the charge contained in the complaint. (See Sloncen v. People (1895), 58 Ill. App. 315; 14A Ill. L. & Prac. Criminal Law § 209 (1968).) The court's order of dismissal simply formalized the nol pros, and it could not be appealed by the State because it was not an adverse order as contemplated by Supreme Court Rule 604 (Ill. Rev. Stat. 1977, ch. 110A, par. 604). While the consent and approval of the court is generally required before the state's attorney may enter a nolle prosequi to any charge (People ex rel. Hoyne v. Newcomer (1918), 284 Ill. 315, 324, 120 N.E. 244, 248; People v. Placek (1975), 25 Ill. App.3d 945, 950, 323 N.E.2d 410, 413), the record does not reveal the presence of any objection by defendant or the court to the prosecutor's motion. If defendant believed he would be prejudiced by the entry of a nolle prosequi to the charge, he should have objected to the motion and moved for a dismissal on the merits. Under such circumstances, a dismissal order would have been clearly adverse to the State, and the State would be required to appeal that order if it wanted to continue to prosecute the case. Cf. People v. Nelson (1974), 18 Ill. App.3d 628, 632, 310 N.E.2d 174, 178.

• 1, 2 In our opinion, the first adverse ruling which was appealable by the State occurred on December 7, 1977, when the trial court refused to grant the State leave to refile the charge in an information. The State acknowledges it could have appealed that order or the order denying the motion to reconsider, entered on December 13. However, on December 30, 1977 (within 30 days of both orders), the trial court reversed itself and allowed the State to file an information. We do not agree with defendant's contention that the trial court had no jurisdiction to rule on the merits of the case after denying the State's motion on December 13, 1977. It is well settled that the trial court retains jurisdiction over all matters, whether substantive or procedural, within 30 days of judgment or until a notice of appeal is filed. During the 30-day period following the entry of judgment or following the denial of a timely post-trial motion, the trial court has the power to enter any order necessary for a complete and correct disposition of the case. (People v. Heil (1978), 71 Ill.2d 458, 376 N.E.2d 1002, 1003.) Thus, the trial court had the power to enter the December 30 order permitting the filing of the information, which was dismissed upon defendant's motion on January 11, 1978. The State's notice of appeal was filed within 30 days of this last order, and was thus timely filed. (See People v. Robins (1975), 33 Ill. App.3d 634, 636, 338 N.E.2d 222, 224.) Accordingly, the motion to dismiss the appeal is denied.

We now address the merits of the State's appeal. The State argues that the trial court erred in dismissing the information, contending that the "one appearance" policy of Supreme Court Rule 504 (Ill. Rev. Stat. 1977, ch. 110A, par. 504) bars further prosecution of a traffic offense only where a defendant is not tried on the original appearance date due to the absence of the arresting officer. Defendant, relying upon City of Belleville v. Watts (1978), 61 Ill. App.3d 538, 378 N.E.2d 213, and People v. Nelson (1974), 18 Ill. App.3d 628, 310 N.E.2d 174, argues that the policy expressed in the rule mandates final dismissal of the charges whenever the State is unable to proceed to trial.

Our resolution of the parties' contentions must necessarily begin with an analysis of the rule itself. Supreme Court Rule 504 (Ill. Rev. Stat. 1977, ch. 110A, par. 504) states:

"The date set by the arresting officer for an accused's appearance in court shall be not less than 10 days but within 45 days after the date of the arrest, whenever practicable. It is the policy of this court that an accused who appears and pleads "not guilty" to an alleged traffic or conservation offense should be granted a trial on the merits on the appearance date set by the arresting officer. Except as provided in Rule 505, an arresting ...


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