Appeal from the Circuit Court of Cook County; the Hon. Thomas
A. Hett, Judge, presiding.
JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Defendants Frankie Jackson and Kenneth Williams appeal, pursuant to Supreme Court Rule 604(f) (87 Ill.2d R. 604(f)), from the trial court's denial of their motion to dismiss based on former jeopardy. Defendants herein were represented at trial by Attorney Scott, and were tried together with two other defendants, Tyrone Williams and Fareed Rasheed, who were represented by Attorney Slaughter; the latter two defendants are not parties to this appeal. Facts pertinent to our disposition follow.
In December of 1981, defendants were charged by information with aggravated battery, aggravated kidnaping, unlawful restraint and armed violence. (Ill. Rev. Stat. 1981, ch. 38, pars. 12-4(b)(1), 10-2(a)(5), 10-3, 33A-2.) They waived a preliminary hearing and filed motions for discovery. The State responded in January of 1982, by way of a "bill of particulars," that the offense occurred at 347 South Homan at 5 p.m. on October 13, 1981. In July 1982, defendants filed notices that they would rely upon an alibi defense which placed them at the Area 4, Eleventh District police station between 4:30 and 6:30 p.m. on the date of the offense.
On February 1, 1983, the case was called for trial and defendants waived a jury. After a brief opening statement by the prosecutor, the State called the victim as its first witness. The victim testified that between noon and 1 p.m. on October 13, 1981, seven men forced him into an automobile at the corner of Franklin and Sacramento streets. He was beaten while in transit to the 300 block of South Homan, where the seven dragged him to a second-floor apartment, where they further beat and kicked him for about an hour. With all seven men present, he was tied, shot, gagged and thrown into a closet. The victim named all seven men and identified the defendants herein as two of those seven. The latest time the victim estimated he could have seen those seven men was 3 p.m.
Later, having worked free from the gag, the victim yelled and a different man opened the closet door and struck him across the chest with a bat. The man, Walter, left the closet door ajar to accommodate the victim's wounded leg. Still later, Walter helped him from the closet, laid him on a bed, and put a mattress over him. The victim's next remembrance was the police.
When the prosecutor completed direct examination, Attorney Scott moved to dismiss the complaint as to all four defendants on grounds of surprise and prejudice caused by the discrepancy between the State's pretrial disclosure and the State's proof at trial. Defendants argued that they had prepared their alibi defense in reliance upon the State's disclosure that the crime occurred at 5 p.m., but that their alibis were inadequate in light of the victim's testimony that the offense occurred at about 1 p.m. The State opposed the motion, stating that the discrepancy as to time was not fatal to the information, and that defendants would not be prejudiced. During argument on the motion it became clear that a supplemental police report, consistent with the victim's trial testimony, had not been tendered to defendants. At this point, the trial court granted a short recess.
After recess, the State made an offer of proof to the effect that disclosure of the wrong time had been an innocent mistake. The trial judge stated that he was convinced the discrepancy was inadvertent, but further opined that "manifest necessity" required that he declare a mistrial to afford defendants an opportunity to prepare an adequate defense. The assistant State's Attorney suggested that a continuance would remedy defendant's surprise; he said that the State would not object to a continuance here. Attorney Slaughter responded,
"Judge, I think that the court's ruling is more appropriate and the reason that I feel so is because to continue it would allow the direct testimony to stand. On the mistrial the witness would have to testify again I believe. If the State is going to prosecute the case, of course, he would have to testify again as to his direct testimony; and I think that if that is going to be the court's remedy, that that is the only proper way to do it and not merely to continue the case."
Attorney Scott was silent. The trial court then declared a mistrial.
The case was again called for trial in June 1983, and defendants moved to dismiss the charges based on former jeopardy. The trial court denied the motion on June 9, and defendants filed their notices of appeal on July 15, 1983.
• 1 At the threshold, we note that defendants apparently filed their notices of appeal after the expiration of the 30 days provided by rule, and without any motion to file a late notice of appeal. (87 Ill.2d R. 606(b) and (c).) However, our supreme court has held that the sua sponte dismissal of an appeal constitutes an abuse of discretion where the defendants' noncompliance is technical or minor and where the appellate court has allowed the appeal to be briefed and argued over an extended period of time before the dismissal. (See People v. Williams (1974), 59 Ill.2d 243, 320 N.E.2d 13; People v. Brown (1973), 54 Ill.2d 25, 294 N.E.2d 267. But see People v. Brown (1973), 54 Ill.2d 25, 27-28, 294 N.E.2d 267 (dissent).) In this case, defendants advised the trial court within 30 days of their intention to appeal, and they filed their notices six days late. Because the parties have submitted their briefs and argued orally, the issue is ripe for decision, and we will reach the merits.
The Bill of Rights provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb * * *." (U.S. Const., amend V.) The double jeopardy clause applies in State proceedings as a matter of fourteenth amendment due process. (Benton v. Maryland (1969), 395 U.S. 784, 794, 23 L.Ed.2d 707, 715, 89 S.Ct. 2056, 2062.) The Illinois Constitution provides in part: "No person shall * * * be twice put in jeopardy for the same offense." (Ill. Const. 1970, art. I, sec. 10.) These provisions are essentially coextensive (People v. Laws (1963), 29 Ill.2d 221, 224, 193 N.E.2d 806, 195 N.E.2d 393), and are founded on the principle, fundamental to Anglo-American jurisprudence, that
"the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty." Green v. United States (1957), 355 U.S. 184, 187-88, 2 L.Ed.2d 199, 204, 78 S.Ct. 221, 223, quoted in ...