APPEAL from the Circuit Court of St. Clair County; the Hon.
THOMAS M. DALEY, Judge, presiding.
MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT:
This is an appeal by the People from an order of the trial court dismissing two traffic complaints issued by a member of the Illinois State Police against the defendant on January 4, 1979. In case No. 79-TR-325 the defendant was charged with driving while under the influence of intoxicating liquor (Ill. Rev. Stat. 1977, ch. 95 1/2, par. 11-501) and in case No. 79-TR-326 he was charged with failure to reduce speed to avoid an accident (Ill. Rev. Stat. 1977, ch. 95 1/2, par. 11-601(a)). The appearance date was set for February 9, 1979, at 9 a.m. by the arresting officer. Prior to the appearance date, the defendant filed the "blue copy" of the complaints with the clerk of the court, pleading not guilty, demanding a trial by jury, and requesting that his appearance date be changed. On January 31, 1979, an entry of appearance and a motion for discovery were filed by his attorney. The case was set for trial by jury on April 25, 1979. On April 24, 1979, defendant filed a motion to compel in case No. 79-TR-325 requesting the court to enter an order compelling the State to furnish defendant with a legible copy of the Illinois State Police alcohol influence report. In case No. 79-TR-326 he filed a motion to continue, requesting a continuance from the April 25, 1979, jury setting because the State's answer to discovery was illegible. Both cases were continued by the trial judge, and reset for trial by jury for June 27, 1979.
On June 27, 1979, the defendant and his attorney appeared, but the State requested a continuance and offered to present evidence to the effect that Dale Gestus, a "lay witness," was physically unable to attend trial because of injuries which occurred in the accident. The arresting officer was also unavailable. The attorney for the defendant represented to the court that the arresting officer was on vacation. The defendant moved for a dismissal. This motion was denied and the State's motion for continuance was granted in both cases. The trial court stated, "Well, my file indicates that the defendant was also given one sometime back for one reason or another, so I will allow the continuance." The cases were then continued until August 22, 1979. On July 3, 1979, the defendant filed a motion to reconsider in both cases, alleging the continuance granted on June 27, 1979, was contrary to Supreme Court Rules 504 and 505 (Ill. Rev. Stat. 1977, ch. 110A, pars. 504 and 505).
On August 22, 1979, the cases were again called and the State announced ready. The defendant was present, but apparently his attorney was on vacation and did not receive notice. The defendant requested a continuance, and the State concurred therein. The continuance was granted and the case was reset for trial by jury for October 24, 1979.
On October 24, 1979, the motion to reconsider was argued and allowed. The order of the trial court stated, "Further, defendant found not guilty because no complaining witnesses were present to offer any evidence as to the defendant's guilt."
From this order the State has filed a timely appeal presenting two issues for this court's consideration:
(1) Whether the People can appeal from an order purporting to be a finding of not guilty and
(2) Whether Supreme Court Rule 504 and/or 505 compel dismissal of a traffic case for failure of the arresting officer to appear under the facts of this case.
1 We are of the opinion the State has a right to appeal in this case. It is the constitutional mandate of this State that "after a trial on the merits in a criminal case, there shall be no appeal from a judgment of acquittal." (Ill. Const. 1970, art. VI, § 6.) There was never a trial on the merits. The ruling of the trial court on the motion to reconsider had the substantive effect of a dismissal, and the appeal therefrom is controlled by Supreme Court Rule 604(a)(1):
"In criminal cases the State may appeal only from an order or judgment the substantive effect of which results in dismissing a charge for any of the grounds enumerated in section 114-1 of the Code of Criminal Procedure of 1963 * * *." Ill. Rev. Stat. 1977, ch. 110A, par. 604(a)(1).
In People v. Love (1968), 39 Ill.2d 436, 439, our supreme court held:
"However, Rule 604(a) cannot be read in isolation for full understanding but must be considered, in association with the committee comments thereon, with the parent rule (former Rule 27(4)) and with the statutory provision (section 120-1 of the Code of Criminal Procedure) which was superseded by former Rule 27(4)."
Rule 27(4) stated: "In criminal cases the State may appeal only from an order or judgment, the substantive effect of which results in dismissing an indictment, information, or complaint." (Ill. Rev. Stat. 1965, ch. 110, par. 101.27(4).) Defendant argues the State has a right to appeal dismissals only on any ground enumerated in section 114-1 of the Code of Criminal Procedure of 1963, as amended (Ill. Rev. Stat. 1977, ch. 38, par. 114-1). We disagree. The Love court held "[t]he State retained the right to appeal in any other case of a judgment the substantive effect of which resulted in the dismissal of an indictment * * *." 39 Ill.2d 436, 439-40.
The defendant calls our attention to People v. Alfano (1980), 78 Ill.2d 434. In Alfano the witnesses for the State testified and their testimony was stricken on motion of the defendant. The State had no other witnesses, a motion for directed verdict was granted and defendant was discharged. Alfano is of no help to the defendant. In Alfano the court held section 114-1 is not exclusive and there are other grounds on which the State may appeal if the substantive effect of the judgment order is a dismissal. See ...