Appeal from the Circuit Court of Jefferson County; the Hon.
Donald E. Garrison, Judge, presiding.
JUSTICE HARRISON DELIVERED THE OPINION OF THE COURT:
Defendant, Glen Riddle, was charged by information with committing the offense of indecent liberties with a child by performing an act of sexual intercourse in violation of section 11-4(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 11-4(a)(1)). After a jury trial in the circuit court of Jefferson County, defendant was convicted and sentenced to six years' imprisonment. Defendant now appeals, contending: (1) that he was denied a prompt preliminary hearing in violation of article I, section 7, of the Illinois Constitution (Ill. Const. 1970, art. I, sec. 7), (2) that he was denied due process when he was not granted a second preliminary hearing after the information was amended to change the date of the offense charged, (3) that he was not proved guilty beyond a reasonable doubt, and (4) that the sentence imposed was excessive. For the reasons which follow, we affirm.
• 1 The record shows that defendant was initially charged on February 14, 1983. On February 18, 1983, defendant's attorney entered his appearance, filed a plea of not guilty on defendant's behalf, and made various pretrial motions. Defendant and his attorney first appeared in court on February 28, 1983, at which time defendant's motions were set for hearing on March 14, 1983, and the case was set for trial on June 14, 1983. Defendant waived formal reading of the charges and advised the court of his plea of not guilty. Defendant remained free on bond. Several months later, on May 5, 1983, defendant moved to dismiss the information for failure to provide a prompt preliminary hearing. A preliminary hearing was then conducted on May 9, 1983, 84 days after the information was initially filed. Defendant's motion to dismiss was subsequently denied.
Our constitution provides:
"No person shall be held to answer for a crime punishable by death or by imprisonment in the penitentiary unless either the initial charge has been brought by indictment of a grand jury or the person has been given a prompt preliminary hearing to establish probable cause." (Ill. Const. 1970, art. I, sec. 7.)
The failure to provide defendant a preliminary hearing until 84 days after filing of the information, or to present his case to a grand jury, unquestionably violated the letter and intent of this provision. (People v. Howell (1975), 60 Ill.2d 117, 119, 324 N.E.2d 403, 404.) Nevertheless, dismissal with prejudice is not available to a defendant as a sanction for such a violation. People v. Holman (1984), 103 Ill.2d 133, 155, 469 N.E.2d 119, 129; People v. Howell (1975), 60 Ill.2d 117, 120-22, 324 N.E.2d 403, 404-05; People v. Meredith (1980), 86 Ill. App.3d 1136, 1137, 409 N.E.2d 70, 71.
• 2 Our supreme court has held that the fashioning of an appropriate remedy where a prompt preliminary hearing has been denied is a legislative rather than a judicial matter. (People v. Holman (1984), 103 Ill.2d 133, 155, 469 N.E.2d 119, 130.) In 1975, the court specifically requested that the General Assembly address this critical and chronic problem. (See People v. Howell (1975), 60 Ill.2d 117, 123, 324 N.E.2d 403, 406.) Although a statute has recently been enacted which specifies the period within which a preliminary hearing must be held (Ill. Rev. Stat. 1983, ch. 38, par. 109-3.1), the legislature has still not established an appropriate remedy for its violation.
• 3 Defendant urges us to follow People v. Kirkley (1978), 60 Ill. App.3d 746, 377 N.E.2d 540, in which the appellate court expressed the view that dismissal of charges with prejudice was the only way to implement the guarantees of article I, section 7 of the Illinois Constitution (Ill. Const. 1970, art. I, sec. 7), given the legislature's failure to specify appropriate sanctions. In that case, an indictment was not returned until 176 days after the defendant's arrest and 148 days after the originally scheduled date for the preliminary hearing, prompting the court to observe that the denial of the constitutional right to a prompt preliminary hearing was the worst that had ever occurred. Here, by contrast, the delay was less than half as long. Although even this delay cannot be condoned, we have previously declined to follow Kirkley where much greater periods of time have been involved. (See People v. Meredith (1980), 86 Ill. App.3d 1136, 409 N.E.2d 70 (204 day delay).) Moreover, defendant here posted bond when arrested, he was not incarcerated when his asserted constitutional right was violated, and the delay did not hinder preparation of his defense. (86 Ill. App.3d 1136, 1137, 409 N.E.2d 70, 71.) Under these circumstances, the trial court did not err in refusing to dismiss the charge against defendant with prejudice.
Two weeks after the trial court denied defendant's motion to dismiss, the State filed an amended information which changed the date of the offense charged from "on or about June or July 1982" to "on or about the 15th day of October, 1982." No further amendments were made. Defendant requested a second preliminary hearing on this amended information, but that request was denied, and the case proceeded to trial. Defendant contends that he was thereby denied due process and that his conviction should be vacated. We disagree.
Section 111-2(f) of the Code of Criminal Procedure of 1963 states:
"Where the prosecution of a felony is by information or complaint after preliminary hearing * * *, such prosecution may be for all offenses arising from the same transaction or conduct of a defendant even though the complaint or complaints filed at the preliminary hearing charged only one or some of the offenses arising from that transaction or conduct." (Ill. Rev. Stat. 1983, ch. 38, par. 111-2(f).)
Testimony adduced at the preliminary hearing in this case indicated that defendant had engaged in repeated acts of sexual intercourse with Sheila Harrison, the complaining witness, beginning in the summer of 1981 and continuing into 1982. No specific dates were given. The State argues that the offense charged in the amended complaint, alleged to have occurred on October 15, 1982, arose "from the same transaction or conduct" of defendant as was testified to at the preliminary hearing and that the prosecution of defendant for that offense, without a subsequent preliminary hearing, was therefore authorized by section 111-2(f).
• 4 The State cites no authority for its position, and we have found none involving analogous facts. We need not reach the applicability of section 111-2(f), however, for even if a second preliminary hearing should have been held on the amended information, we do not believe that denial of such a hearing here mandates reversal of defendant's conviction. The purpose of a preliminary hearing is to ensure that a criminal defendant is not held without a prompt showing of probable cause. (People v. Redmond (1977), 67 Ill.2d 242, 246, 367 N.E.2d 703, 705.) A judicial determination of probable cause as a prerequisite to an extended restraint of liberty following an arrest is required by the fourth amendment to the Federal Constitution (U.S. Const., amend. IV) and by article I, section 7 of our own constitution. (People v. Thompson (1980), 91 Ill. App.3d 1111, 1115, 415 N.E.2d 648, 651; People v. Redmond (1977), 67 Ill.2d 242, 246, 367 N.E.2d 703, 705.) Nevertheless, "although a suspect who is presently detained may challenge the probable cause for that confinement, a conviction will not be vacated on the ground that the defendant was detained pending trial without a determination of probable cause." (Gerstein v. Pugh (1975), 420 U.S. 103, 119, 43 L.Ed.2d 54, 68, 95 S.Ct. 854, 866; People v. Thompson (1980), 91 Ill. App.3d 1111, 1115, 415 N.E.2d 648, 651.
• 5 Such a result works no injustice given the facts present here. Approximately three months before the amended information was filed, the State submitted a bill of particulars which set the time of the offense at "8:00-10:00 p.m. on or about October 15, 1982, November 15, 1982." The amended information merely incorporated the first of these dates. The offense charged, and the details of that offense, remain unchanged. Defendant can therefore claim no surprise, nor can he contend that his ability to formulate his defense was hindered. The thrust of defendant's case, apparently, is that he never had sexual intercourse with the complaining witness. No alibi defense was presented; no claim was made that the statute of limitations had expired. Indeed, the specific date of the alleged offense was not basic to any theory or defense advanced on defendant's behalf. (See People v. Long ...