Appeal from the Appellate Court for the Fourth District; heard
in that court on appeal from the Circuit Court of Coles County,
the Hon. Tom E. Grace, Judge, presiding.
MR. JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:
On February 15, 1979, the defendant, Douglas Dees, was arrested without a warrant, and an information was filed charging him with the misdemeanor offenses of resisting a police officer and escape. On the same day a warrant was issued by the Department of Corrections reciting that defendant had violated the conditions of his parole from an earlier conviction and sentence of imprisonment, and commanding his apprehension and return to confinement. On February 23 he was served with written notice of the alleged parole violations and waived a preliminary hearing on those charges. He revoked that waiver on February 28. On March 1 he was brought before a judge of the circuit court of Coles County for arraignment on the criminal charges and furnished a copy of the information. Defendant declined the appointment of counsel and pleaded not guilty. On March 12 he moved for a discharge from custody because he had not been given a preliminary hearing during the 14-day period between his arrest and arraignment. That motion was denied on March 19. Defendant then requested a lawyer, and counsel was appointed.
A hearing on the charges of parole violation was held on March 20 by the Department of Corrections, and probable cause was found. Defense counsel subsequently renewed defendant's original motion to dismiss the criminal charges, and on April 25 the circuit court found that the 14-day delay between arrest and arraignment violated the statutory provisions concerning preliminary examination (Ill. Rev. Stat. 1979, ch. 38, par. 109-1(a)) and denied defendant due process. The criminal charges were dismissed with prejudice. A divided appellate court affirmed (81 Ill. App.3d 35), and we granted the State's petition for leave to appeal.
The defendant alleges, and the trial and appellate courts> found, that defendant was prejudiced by the 14-day delay in bringing him before a judicial officer. The State argues that since defendant would have remained in jail on the parole-violation charges even if a judge had found no probable cause for the criminal charges, defendant suffered no actual and substantial prejudice from the delay in his court appearance. The State also asserts that even if the delay is found to be unreasonable and the cause of substantial prejudice to defendant, the dismissal of the charges without leave to refile was inappropriate.
Our Code of Criminal Procedure of 1963 provisions relating to preliminary examinations state in part:
"Sec. 109-1. Person Arrested.
(a) 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. A person arrested on a warrant shall be taken without unnecessary delay before the judge who issued the warrant or if he is absent or unable to act before the nearest or most accessible judge in the same county.
(1) Inform the defendant of the charge against him and shall provide him with a copy of the charge.
(2) Advise the defendant of his right to counsel and if indigent shall appoint a public defender or licensed attorney at law of this State to represent him in accordance with the provisions of Section 113-3 of this Code.
(3) Hold a preliminary hearing in those cases where the judge is without jurisdiction to try the offense; and
(4) Admit the defendant to bail in accordance with the provisions of Article 110 of this Code." Ill. Rev. Stat. 1979, ch. 38, par. 109-1.
The right of a defendant arrested without a warrant to at least an informal, non-adversary type of probable cause hearing before a judicial officer as a prerequisite to extended restraint of liberty is secured by the fourth amendment to the Federal Constitution. (Gerstein v. Pugh (1975), 420 U.S. 103, 114, 43 L.Ed.2d 54, 65, 95 S.Ct. 854, 863.) Our own statutory provisions direct that such defendants be taken before a judge without unnecessary delay, and prescribe a somewhat more formal preliminary examination with a right to counsel. The precise question for our resolution is whether the 14-day interval between defendant's arrest and his court appearance justifies permanent dismissal of the charges where defendant has not established prejudice resulting from that delay.
The problem of delay in taking an accused person before a judicial officer is not a new one. (See Ill. Ann. Stat. ch. 38, art. 109, Committee Comments (Smith-Hurd 1970).) Delay alone, however, has not heretofore been considered sufficient cause to penalize the prosecution to the extent of excluding confessions obtained during the period between arrest and appearance before a judge (see Ill. Ann. Stat. ch. 38, art. 109, Committee Comments (Smith-Hurd 1970); People v. Howell (1975), 60 Ill.2d 117, 122; People v. Stone (1970), 45 Ill.2d 100) or to dismiss the case (People v. Lawson (1977), 67 Ill.2d 449). Rather, this court, in the confession cases, has considered whether the evidence ...