Appeal from the Appellate Court for the Second District; heard
in that court on appeal from the Circuit Court of Du Page County,
the Hon. C. Andrew Hayton, Judge, presiding.
JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:
In this case we must review the circuit court's authority under Illinois law to deny a prosecutor's motion for nolle prosequi. We are also called upon to decide whether the circuit court's actions in this case resulted in jeopardy to the defendant under the State and Federal constitutions, thus barring a new trial for the offenses charged. Ill. Const. 1970, art. I, sec. 10; U.S. Const., amend. V.
The defendant, Richard Rudi, was originally charged with battery, aggravated battery and unlawful restraint. He was convicted of battery in a jury trial, but this conviction was reversed by the appellate court for trial error and the cause was remanded for a new trial (94 Ill. App.3d 856). Upon remand the circuit court entered an order setting the matter "for jury trial on April 13, 1982 at 9 a.m. without further notice."
On April 13 the prosecutor moved for a continuance until April 15. This motion was supported by an affidavit of the assistant State's Attorney who stated that the case had been assigned to her after the trial date had been set, but that the trial date did not appear in the prosecutor's case file. When the assistant State's Attorney called the circuit court clerk's office an employee of the clerk's office she could not identify erroneously gave her the date of April 16, 1982. Consequently, the assistant State's Attorney caused subpoenas to be issued for all of the State's witnesses to appear on April 16, 1982. The assistant State's Attorney urged that jury selection and opening arguments go forward on April 13 with a continuance to April 15 for the presentation of evidence.
The defendant's attorney objected to the motion for continuance, stating that he had scheduled an expert witness from California, that he had reserved three days for this trial and had no other space on his calendar until June. After the court denied the State's motion, the prosecutor moved to nol-pros the charge.
The State's Attorney of Du Page County personally addressed the court, stating that he would "very likely * * * refile this case because it is clearly in the public interest." He indicated further that his office had "finally found the witnesses to get this case through to a conclusion," and did not wish to forgo an opportunity to convict the defendant merely because they could not at that time work out a mutually convenient date for trial. The court denied the State's motion for nolle prosequi:
"I must find that a motion to nolle pros. is merely another motion for continuance, which is part of a continuing course of conduct by the State's Attorney's Office to circumvent my denials of their motions for continuance when I find lack of due diligence. Consequently, I'll deny the motion for nolle pros."
The court then had the defendant sworn and asked whether "the State's Attorney [wished] to present any evidence or bring in a jury." When the State's Attorney failed to come forward with any evidence, the trial court entered an order stating "[t]hat the defendant, Richard Rudi, is not guilty of the offense of battery." The State did not appeal this order.
On May 17, 1982, the prosecutor filed a new information charging the defendant with the offense of battery arising from the same circumstances that were the subject of the first information. The circuit court granted the defendant's motion to dismiss the information on the ground of double jeopardy.
The State appealed and the appellate court reversed the circuit court by a Rule 23 order. (113 Ill. App.3d 1168.) It held that under the circumstances the circuit court should have granted the motion for a continuance and that in any case the denial of the State's motion for nolle prosequi was an abuse of discretion because there had been no showing that the State's Attorney's action was capriciously or vexatiously repetitious. The appellate court also held that the dismissal was improper under People v. Deems (1980), 81 Ill.2d 384. The defendant's petition for leave to appeal to this court was allowed (87 Ill.2d R. 315(a)).
We agree with the appellate court's conclusion that this case is controlled by People v. Deems. Conceding that the defendant had been charged with the wrong offense, receiving stolen property, and that the State had no evidence to convict the defendant of that crime, the prosecutor in Deems sought to dismiss the indictment. The prosecutor acknowledged, however, that he planned to indict the defendant for the offense of theft. The defendant opposed the motion for dismissal and demanded an immediate trial on the charge in the original indictment. The circuit court denied the prosecutor's motion, called the case for trial, and acquitted the defendant when the State failed to present any evidence against him. This court, on appeal by the State from the dismissal on double jeopardy grounds of a subsequent indictment for theft, disapproved of the procedure adopted by the circuit court in denying the prosecution's motion to dismiss and held that a trial on the new indictment would not violate double jeopardy.
As in People v. Deems, the "trial" held in this case on April 13 "was a sham, an artifice employed by the trial judge to achieve the result of a dismissal with prejudice for want of prosecution which * * * he did not have the authority to order." (People v. Deems (1980), 81 Ill.2d 384, 389; see also People v. Hall (1983), 117 Ill. App.3d 881, 883-84.) Under the circumstances of this case it was an abuse of discretion for the circuit court to deny the prosecution's motion for nolle prosequi.
The defendant argues that allowing the prosecutor to nol-pros effectively transfers to him the court's power to control its calendar by divesting the circuit court of the authority to enforce its own schedule, thus violating the doctrine of separation of powers. (Johnson v. Theodoron (1927), 324 Ill. 543.) The defendant also contends that the power to nol-pros allows the State an unfair advantage over the defendant. Neither concern is substantial. Assistant State's Attorneys who fail without valid reasons to honor the court's calendar may be held in contempt. Moreover, in the future a recently enacted statute will permit the court to dismiss an action in cases where the ...