APPEAL from the Circuit Court of Vermilion County; the Hon.
PAUL M. WRIGHT, Judge, presiding.
MR. JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:
Can the State move to dismiss a criminal charge with prejudice, see the motion allowed, and then appeal from the dismissal?
In essence, this is what happened:
Meek was charged with two counts, one of burglary and one of theft over $150. On April 14, 1980, the prosecutor's request for a continuance due to the unavailability of a State witness was denied, at which point the trial court granted the State's motion to dismiss the indictment with prejudice.
But the singular factual situation presented to us justifies a rather detailed recitation of the events leading to the State's attempt here to appeal.
On January 28, 1980, an indictment was filed charging the defendant with one count of burglary and one count of theft over $150. On the following day, the defendant pleaded not guilty and trial was set for April 9, 1980.
On April 8, 1980, Assistant State's Attorney David Ryan filed a motion for a continuance. In his affidavit in support of this motion, Ryan stated that Dale Dixon, a part-time police chief with the Belgium, Illinois, police department, had left the State on April 7, 1980, on a truck-driving trip to the State of Pennsylvania and would be out of Illinois and unavailable to testify until April 12, 1980. Ryan stated that Dixon was a witness necessary for the presentation of the State's case. The trial court granted the State's motion and set the case for bench trial on April 14, 1980.
On April 14, 1980, Ryan presented an oral motion to be allowed to split up the State's case by presenting the testimony of Dale Dixon at a later date. In support of this motion, Ryan stated that Dixon had not been in town all weekend and had not contacted the State's Attorney's Office with regard to this case and was avoiding service of the subpoena. Ryan stated that Investigator Herb Randall of the State's Attorney's Office had contacted Dixon's wife the previous Tuesday. Mrs. Dixon told Randall that her husband would be in Texas but would return on Saturday, when he would be working for the Belgium Police Department. Randall told Mrs. Dixon to have her husband call the State's Attorney's Office.
Deputy Jerry Davis spoke with Dixon's superior, Chief Chew of the Sidell Police Department. Deputy Davis told Ryan that, on the basis of his conversation with Chew, Davis believed that Dixon was scheduled to work for the city of Belgium as a police officer that weekend. Deputy Davis went past his house several times to try to serve the subpoena on the weekend of April 12, 1980. Dixon was not at home. Mrs. Dixon told Davis that her husband had not returned from Texas that weekend but had stayed there for another truck-driving trip and would not be returning to Illinois until "the middle of this week." Finally, Ryan stated that Deputy Davis had told all three shifts of the Vermilion County Sheriff's Department about the subpoena and its importance and had asked them to check Dixon's house at all hours of the day that weekend. Davis was unable, however, to serve the subpoena.
Ryan stated that he believed that Dixon was deliberately avoiding the subpoena because of the hostility and ill will between Dixon and the State's Attorney's Office. Ryan believed that Dixon bore him a grudge from an incident two years earlier in which Ryan had filed charges against Dixon for obstructing an investigation. The charges were dropped when a witness later recanted the statement he had given to the police. Finally, Ryan stated that all of the other State's witnesses were present and ready for the trial. Defense counsel James Yoho objected to this motion but noted it would not be worthwhile to start the case without the testimony of Dale Dixon, whose testimony would be one of the central areas in dispute. Yoho stated that Dixon's bad faith in terms of being available as a witness after having brought the charges as a police officer should be imputed against the State for purposes of a motion for continuance, especially since a continuance had previously been granted solely on the basis of Dixon's absence.
The trial court found that since the case had been set for at least a month and since the State had an opportunity to serve the subpoena much earlier than the continuance granted the previous week, failure to serve a subpoena upon the witness for the State must fall upon the State. The trial court held that if the witness was not available by noon the following day, April 15, no further continuance would be granted for the purposes of obtaining that witness.
On April 15, 1980, Ryan stated that pursuant to the court's order of April 14, a police officer had been sent to Dale Dixon's house. Dixon's truck was not at home, and Mrs. Dixon stated that he was still in Texas and had not been home all weekend. Ryan stated that he had talked to Officer Bruce Stark of the Danville Police Department, who had seen Dixon driving his unmarked Belgium squad car down Route 1 on Saturday, in direct contradiction to Mrs. Dixon's statement that her husband was in Texas. Ryan moved, on the basis of this additional information, that a continuance be granted for one week so that they could subpoena Dixon.
Yoho, defense counsel, objected to this motion. The court held that its ruling of April 14 would remain in effect since the lack of diligence in seeking to subpoena Dixon had occurred at some time in the past and since there was no showing that Dixon would ...