APPEAL from the Circuit Court of Coles County; the Hon. TOM E.
GRACE, Judge, presiding.
MR. PRESIDING JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:
Delay of 14 days before arraignment.
Motion to dismiss for denial of due process.
Allowed without leave to refile.
On February 15, 1979, defendant Dees was arrested without a warrant and charged by information with resisting a police officer and escape, both offenses being misdemeanors. Since the defendant was on parole at the time he was arrested, the Illinois Department of Corrections issued a warrant on the same day based on these charges.
The case was called for arraignment on March 1, 1979, and defendant was furnished with a copy of the information. He declined appointment of counsel and entered a plea of not guilty, demanding a jury trial. Bond was set at $1,000.
Defendant filed a "motion to be discharged from custody," claiming that the delay between his arrest and being brought before the court constituted a violation of sections 107-14 and 109-1 of the Code of Criminal Procedure of 1963. (Ill. Rev. Stat. 1977, ch. 38, pars. 107-14, 109-1.) The court denied the motion, noting that the State was required to hold the defendant under the Department of Corrections warrant. Defendant then requested the appointment of counsel.
Defense counsel then filed a motion to dismiss, claiming that the delay was a denial of due process and a violation of section 109-1.
After a hearing, the trial court found that the provisions of section 109-1 are mandatory and that a failure to comply with the mandates of that statute constitutes a denial of due process of law. The court also found that the defendant had been actually and substantially prejudiced by the delay. The court noted that a judge had been available every working day during the 14-day period and that the State was unable to provide any explanation for the delay. Finally, the court found that it had the inherent power to dismiss a case without leave to reinstate where there has been a violation of defendant's rights resulting in a denial of due process of law, as in the instant case.
The State now appeals, claiming that defendant's due process rights were not violated because he was not prejudiced by the delay and, even if his rights were violated, the trial court's remedy was inappropriate.
The fifth amendment to the United States Constitution proclaims that no person shall be deprived of life, liberty, or property without due process of law. This basic right is made applicable to the States via the fourteenth amendment to the United States Constitution. In Illinois this right is also set forth in article I, section 2, of the Constitution of 1970.
The term due process is a vague concept which does not readily lend itself to a precise definition. In its most basic sense, however, it is the protection of the individual from arbitrary action. (Ohio Bell Telephone Co. v. Public Utilities Com. (1937), 301 U.S. 292, 302, 81 L.Ed. 1093, 1100, 57 S.Ct. 724, 729.) While it is true that all rights and privileges are not protected by due process of law, it is well established that no right is held more sacred than the right of an individual to be free from all restraint of interference unless by clear and unquestionable authority of law.
The trial court found that a violation of the statute was also a per se violation of due process. With this finding, however, we disagree.
Section 109-1(a) provides in its pertinent part:
"A person arrested without a warrant shall be taken without unnecessary delay before the nearest and most accessible judge in that county, and a charge shall be filed." Ill. Rev. Stat. 1977, ch. 38, par. 109-1(a).
The Committee Comments to this section state that it "conforms in general with the provisions of Federal Rule 5(a)." Ill. Ann. Stat., ch. 38, par. 109-1, Committee Comments, at 282 (Smith-Hurd 1970).
Our examination of Federal Rule 5(a) reveals, however, that it was promulgated in pursuance of the United States Supreme Court's supervisory power over Federal prosecutions and is not a Federal constitutional requirement. See, e.g., Delaney v. Gladden (9th Cir. 1968), 397 F.2d ...