APPEAL from the Circuit Court of Kane County; the Hon. JAMES
F. QUETSCH, Judge, presiding.
JUSTICE HOPF DELIVERED THE OPINION OF THE COURT:
The State appeals the dismissal on speedy-trial grounds of an indictment charging defendant with theft of a motor vehicle in violation of section 4-103(a) of the Illinois Vehicle Code (Ill. Rev. Stat. 1979, ch. 95 1/2, par. 4-103(a)(1)), and theft by possession of stolen property (Ill. Rev. Stat. 1979, ch. 38, par. 16-1(d)(1)).
On February 23, 1978, defendant was arrested in Cook County and charged by indictment with possession of a stolen vehicle in violation of section 4-103(a) of the Illinois Vehicle Code (Ill. Rev. Stat. 1977, ch. 95 1/2, par. 4-103(a)). Defendant was released on bond. On July 18, 1978, on the State's motion the charges were stricken with leave to reinstate. At that time defendant demanded immediate trial. The State never moved for reinstatement of the charges, and on July 31, 1979, defendant's arrest record was expunged on his motion.
On June 24, 1980, defendant was indicted in Kane County for theft by possession of stolen property (Ill. Rev. Stat. 1979, ch. 38, par. 16-1(d)(1)) and possession of a stolen motor vehicle in violation of section 4-103(a)(1) of the Illinois Vehicle Code (Ill. Rev. Stat. 1979, ch. 95 1/2, par. 4-103(a)(1)). The indictment concerned the same vehicle involved in the Cook County charges and the parties stipulated that the Cook County matter related to the charges brought in Kane County. On November 12, 1980, defendant filed an amended motion to dismiss the charges in the indictment alleging that as over 160 days had passed since he demanded trial in the Cook County circuit court his statutory right to a speedy trial had been violated (Ill. Rev. Stat. 1979, ch. 38, par. 103-5(b)). On January 21, 1981, the court dismissed the indictment concluding that defendant's right to a speedy trial had been violated. The State appeals under Supreme Court Rule 604(a) (73 Ill.2d R. 604(a)).
The question which we must first address is whether the charge brought in Cook County is the same as those brought in Kane County. If the Cook County indictment does not charge the same offense as those charged in Kane County, then speedy trial considerations do not apply.
• 1 It has been held that reindictment following dismissal of a prior indictment for the same offense is a restatement of the State's original charge and an inquiry into an allegation of a speedy trial violation must consider the time which has elapsed since the first charge. (People v. Jones (1976), 37 Ill. App.3d 515, 346 N.E.2d 430.) Apparently the same rule applies even when the second indictment is brought in a different county where, as here, the first county had jurisdiction to try the offense. Compare People v. Rogers (1953), 415 Ill. 343, 114 N.E.2d 398, where the court held that speedy trial analysis cannot consider the time elapsed between the bringing of a charge in Cook County and the same charge in Lake County because Cook County did not have jurisdiction to try the offense.
The Kane County count charging possession of a stolen vehicle charges defendant with the identical offense for which he was charged in Cook County, except that in the Kane County indictment defendant was charged with possession in Kane County and in the Cook County indictment defendant was charged with possession of that vehicle in Cook County.
• 2, 3 The fact that a crime was committed in a particular county is a material averment which must be proved beyond a reasonable doubt. (Ill. Rev. Stat. 1979, ch. 38, par. 1-6(a); People v. Toellen (1978), 66 Ill. App.3d 967, 384 N.E.2d 480.) It might appear that commission of an offense of possession of a stolen vehicle in Cook County and of possession of that same stolen vehicle in Kane County are two distinct offenses for which two prosecutions are permissible. We believe, however, that the principles applicable to prosecuting for theft where the stolen property passes through more than one county have applicability to prosecutions for possession of a stolen vehicle where the vehicle is possessed by a defendant in more than one county. Theft may be prosecuted in any county in which the defendant exerted control over the property (Ill. Rev. Stat. 1979, ch. 38, par. 16-1(d)), but a defendant may not be prosecuted for the same theft in more than one county. (People v. Stickler (1975), 31 Ill. App.3d 977, 334 N.E.2d 475.) We believe these principles apply equally to the offense of possession of a stolen vehicle and conclude that although a defendant has possessed a stolen vehicle in a number of counties only one offense of possession may be charged. We do not think the possession count in the Kane County indictment should be distinguished from the Cook County charge for possession of the same vehicle. We conclude that the Kane County charge is a restatement of the original Cook County charge and that an inquiry into defendant's allegation of a speedy trial violation must consider the time which has elapsed since the first charge. See People v. Jones; People v. Rogers.
• 4 We also conclude that the Kane County charge against defendant of theft by possession of stolen property (Ill. Rev. Stat. 1979, ch. 38, par. 16-1(d)(1)) must be considered in our speedy trial analysis. When a new and additional charge arises from the same facts as did the original charge and the State knew of these facts at the time of the initial indictment, the time within which trial is to begin on the additional charges is subject to the same statutory limitation that is applied to the original charges. (People v. Williams (1981), 94 Ill. App.3d 241, 418 N.E.2d 840; People v. Parker (1978), 59 Ill. App.3d 302, 375 N.E.2d 465.) The parties stipulated that the Cook County and Kane County indictments involved the same matter. The trial court found that the indictments arose from the same facts. Speedy trial considerations thus are applicable to both the charge of theft and the charge of possession of a stolen vehicle.
Next we must consider whether the Kane County indictment brought more than two years after the Cook County indictment and over 160 days after defendant demanded a speedy trial violated defendant's right to a speedy trial
• 5 The State argues that defendant was not on bail during the time between his demand for trial and his indictment in Kane County and that therefore his July 18, 1978, demand for trial in the Cook County circuit court had no effect. The State had not raised this argument in the circuit court. A party waives consideration on appeal of a theory it had not raised below. People v. McAdrian (1972), 52 Ill.2d 250, 287 N.E.2d 688.
Even were we not to consider State's argument as waived we would conclude that defendant's statutory right to a speedy trial required dismissal.
A defendant is guaranteed a speedy trial by State statute (Ill. Rev. Stat. 1979, ch. 38, par. 103-5) and both the Illinois and Federal constitutions (Ill. Const. 1970, art. I, sec. 8; U.S. Const., amend. VI). Defendant contended before the Kane County circuit court that under the speedy trial statute he was entitled to dismissal of the charges against him because he had demanded a trial over 160 days earlier in Cook County. The trial court order dismissing the charges did not specify whether it did so on statutory or ...