APPEAL from the Circuit Court of Cook County; the Hon. KENNETH
L. GILLIS, Judge, presiding.
MR. PRESIDING JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:
The State appeals from the trial court's "acquittal" of defendant, Ellen Edwards, and seeks to invoke appellate jurisdiction to review that disposition under Supreme Court Rule 604(a)(1) (Ill. Rev. Stat. 1979, ch. 110A, par. 604(a)(1)), which permits the State to appeal orders of dismissal. The State alleges that the substantive effect of the trial court's action was to improperly dismiss the charge against defendant rather than to acquit.
The information filed by the State on October 24, 1979, in the instant case named three defendants, V.O. James, otherwise called James Mansfield, Ellen Edwards, the present defendant, and Reginald Fisher, charging all three with theft. The three were arraigned on October 29, 1979. From that time, the State proceeded against all three in one action, until the date on which the events of which the State complains occurred. When the cause came on for trial on March 19, 1980, the trial court granted a continuance to March 24, 1980, to two of the three defendants, V.O. James and Reginald Fisher, who were apparently experiencing some difficulty with respect to securing defense counsel.
The trial court then asked whether the State was ready for trial in the case of defendant Ellen Edwards. The prosecutor responded that: it was the State's intention to try all three defendants together; the State was attempting to comply with the trial court's desire to go to trial on the case of Ellen Edwards and was "* * * amenable to try her case separately from the other defendants though there * * * [were] really no grounds for severance"; the State had made attempts to get the arresting officers into court that day but both were on furlough and could not be reached by telephone; and because the officers could not be present, and the State had never before sought a motion for a continuance, it respectfully requested that the Ellen Edwards case be given the same date the co-defendants received, March 24, and it would at that time be ready to proceed one way or another with that case.
It was upon this background of two previous continuances sought by and granted to defendants and five "by agreement" continuances, in addition to the two continuances granted to the co-defendants that very morning, that the trial court stated:
"I don't know what I can do to communicate with the State's Attorneys in this court that when I say trial I mean trial. So the motion for continuance is denied."
The trial court then inquired as to the State's evidence. The State responded that it had none to put on by virtue of the absence of its key witnesses. The prosecutor stated:
"Mr. Romano: We are not prepared for we have no witnesses in court.
The Court: Do you wish your client to testify?
Mr. Morse [public defender representing Edwards]: Yes, I do, Judge."
Thereafter, defendant Edwards, called on her own behalf, was sworn and testified as to her version of the circumstances and arrest. The court then inquired as to whether the State would cross-examine to which the prosecutor responded:
"Mr. Romano: Your Honor, the State respectfully states for the record we do not believe there's a legitimate case or controversy before the Court and we have no questions.
"The Court: All right, argument? State [sic] wish to argue?
Mr. Romano: The State, for the record, states we are not party [sic] to this proceeding ...