Appeal from the Circuit Court of Vermilion County, the Hon.
James K. Robinson, Judge, presiding.
JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:
On December 15, 1977, defendant, Amado Nuncio Flores, was charged by information in the circuit court of Vermilion County with four counts of delivery of a controlled substance (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1401) and one count of delivery of a substance represented to be a controlled substance (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1404). A jury trial was commenced on February 21, 1979. The defendant was present and represented by counsel. The State called four witnesses. The defense made a motion for a directed verdict on counts I and II, which was denied. There was then a jury instructions conference during which time defense counsel indicated the defendant was not going to testify. The court was adjourned for the day to reconvene at 9:30 a.m. on the next day, February 22, 1979. Before adjourning, the trial judge advised those present in the courtroom that the trial was recessed until 9.30 a.m. the next day for the jury, and 8:30 a.m. for counsel, because there might be some matters which needed to be taken up outside the presence of the jury.
On February 22, 1979, defense counsel and the assistant State's Attorney appeared at 8:30 a.m. At that time, the State announced that it intended to rest. Counsel for the defendant made a motion for a directed verdict which was argued and denied. Defense counsel stated that he did not intend to call the defendant or any other witnesses. At 9:30 a.m., the defendant did not appear. At 10:45 a.m., after the case had been called several times, the defendant had still not appeared. The State asked that the trial proceed in the defendant's absence on the basis of waiver. Defense counsel objected to proceeding based on the confrontation clauses of the Illinois and United States constitutions. The trial judge inquired as to whether defense counsel or anyone in his office had made an effort to locate the defendant. Defense counsel stated that the only phone number he had for the defendant had been disconnected. The trial judge continued the proceeding until 1 p.m. with the understanding that defense counsel would make an effort to locate the defendant. The trial judge offered to make transportation available to defense counsel through the sheriff's department so that it could be determined "if there [was] any responsible or legitimate cause why the defendant had not appeared for trial." The trial judge then stated:
"I would advise you at this time that in the event the defendant has not appeared for the continuation of this trial, the Court will enter a finding of voluntary waiver after the commencement of proceedings and to proceed with the balance of the trial in the defendant's absence. * * *
* * * We have here a trial that was begun on a Wednesday morning. The defendant absented himself on a Thursday morning. If the statute were to be followed, the Court would be required to delay further proceedings through Friday evening, which means that the next time this matter could be called would be Monday morning. There are two extremely important issues which would indicate this to be an unacceptable and inappropriate delay. In the first place, we have a jury that has been impaneled, that has heard apparently all of the State's case, and will have an opportunity to hear any defense witnesses called. To require their dismissal for a period of Thursday, Friday, Saturday, Sunday, would, in the opinion of the Court, serve neither the ends of justice nor the protection of the defendant. It would be a useless act which would merely complicate the problems which the defendant has brought upon himself. * * *
I am entering an additional finding in this case, therefore, not based upon the practicalities of the situation, but clearly and directly upon issues of Constitutional law, that that provision of Chapter 38, Section 115(4)(1) which indicates vaguely that the Court is required under statute to delay two successive court days before proceeding is an unconstitutional intrusion of the legislature into the trial authority and rulemaking authority of the courts> * * *."
At 1 p.m. the trial proceeded in the defendant's absence. The defense rested without presenting any evidence. Both the State and defense counsel gave closing arguments, and the jury was then given its instructions. The jury found the defendant guilty of two counts of delivery of a controlled substance and one count of delivery of a substance represented to be a controlled substance.
On February 28, 1979, defense counsel filed a post-trial motion, alleging that the trial court had erred by proceeding with the trial in the defendant's absence and requesting discharge of the defendant or, in the alternative, a new trial. A hearing was not held on defendant's post-trial motion until May 23, 1983. Defendant was present at the hearing on May 23, 1983. The trial judge stated:
"I then held as I hold now that the efforts of the legislature in this line are misguided, are an infringement on the authority of the courts> under the separation of powers doctrine, and indicated the delineation of that portion of the statute which I felt to constitute such an unconstitutional infringement."
The trial judge denied the defendant's motion for post-trial relief, holding the matter is "best left to court interpretation and judgment in an individual case or Supreme Court rule." The cause came up again for a sentencing hearing on May 31, 1983. At that time, the State agreed with defense counsel that defendant's conviction for delivery of a substance represented to be a controlled substance had to be vacated because, subsequent to the return of the jury's verdict, the portion of the statute for that offense was declared unconstitutional. The trial judge vacated the defendant's conviction on the one count and called the matter for sentencing. The defendant was sentenced to two concurrent terms of 3 to 15 years' imprisonment to run consecutively with a sentence he was serving in Wisconsin. This appeal comes directly to this court under our Rule 603 (87 Ill.2d R. 603), which provides for direct appeal to this court in a criminal case when a statute of this State has been held invalid.
The sole issue before this court is whether the trial court erred in holding as unconstitutional that portion of section 115-4.1 (Ill. Rev. Stat. 1977, ch. 38, par. 115-4.1) which provides:
"In any criminal trial, where a defendant after his trial commences willfully absents himself from court for a period of 2 successive court days, the court shall proceed with trial. * * *" (Emphasis added.) Ill. Rev. Stat. 1977, ch. 38, par. 115-4.1.
The defendant contends that the circuit court erred in holding the statute unconstitutional and asserts that the statute does not violate the separation-of-powers clause of the Illinois Constitution of 1970 (Ill. Const. 1970, art. II, sec. ...