APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
536 N.E.2d 160, 180 Ill. App. 3d 671, 129 Ill. Dec. 476 1989.IL.332
Appeal from the Circuit Court of Kane County; the Hon. John L. Nickels, Judge, presiding.
JUSTICE REINHARD delivered the opinion of the court. UNVERZAGT, P.J., and INGLIS, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE REINHARD
The State appeals from an order of the circuit court of Kane County dismissing an indictment which charged defendant, Daniel Valenzuela, with the offenses of burglary (Ill. Rev. Stat. 1987, ch. 38, par. 19-1) and possession of burglary tools (Ill. Rev. Stat. 1987, ch. 38, par. 19-2). On appeal, the State contends that the trial court erred in dismissing the indictment with prejudice because defendant failed to show that the refiling of the indictment would deny him due process.
On April 20, 1987, defendant was charged by a two-count complaint with burglary and possession of burglary tools. After two continuances requested by the State and two continuances requested by the defendant, a preliminary hearing was conducted on August 6, 1987, on the complaint against defendant. At the Conclusion of the hearing, the trial court determined that there was no probable cause to support either count of the complaint. It appears that the State's only witness was unable to properly identify either the location of the burglarized motor vehicle or the owner of the vehicle as alleged in the complaint.
Defendant was recharged with burglary and possession of burglary tools by a two-count complaint filed on September 24, 1987. This complaint only differed from the prior complaint in that the address at which the alleged burglary occurred was changed from 1249 E. Wilson to 849 E. Wilson. On December 3, 1987, defendant filed a motion to dismiss the second complaint contending that it was factually identical to the prior complaint except for the address alleged in the burglary count and, therefore, should be dismissed based on the principles of res judicata and collateral estoppel. At a hearing on defendant's motion to dismiss, the State requested leave to amend the complaint to state that the burglarized automobile belonged to Donald Moug, not Jeffery Reinert as alleged therein. The trial court stated that the State's amendments did not constitute a material part of the charges and granted defendant's motion to dismiss on the basis that the second complaint brought the same charges raised in the first complaint.
On December 22, 1987, defendant was charged in a two-count indictment with burglary and possession of burglary tools. The indictment was identical to the second complaint with the exception that the name of the owner of the burglarized motor vehicle was changed from Jeffery Reinert to Donald Moug.
Defendant then filed a motion to dismiss the indictment. In his motion, defendant urged dismissal of the indictment based on the State's failure to advise the grand jury, pursuant to section 112-4(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 112-4(b)), that a finding of no probable cause as to the charges in the indictment had resulted from the preliminary hearing on its first complaint. Defendant also sought dismissal of the indictment with prejudice for a violation of his due process rights based on harassment by the State. In this latter regard, defendant argued at the hearing on his motion to dismiss, relying on People v. Overstreet (1978), 64 Ill. App. 3d 287, 381 N.E.2d 305, that the State's repeated charging constituted harassment which denied him due process. Defendant did not argue before the trial court, nor does he in this appeal, that the State intentionally harassed him, but rather, argues that the State's mismanagement of the case resulted in "legal" harassment. The State agreed that the indictment should be dismissed for its failure to comply with section 112-4(b), but argued the dismissal should be without prejudice to seek reindictment.
The trial court, in ruling on defendant's motion, indicated that, absent the delay in this case, it would agree with the State. The court ruled, however, that the eight-month period of time between the initial charging of defendant on April 20, 1987, and the December 22, 1987, indictment against defendant was excessive and, although unintentional, it constituted an unnecessary delay requiring dismissal of the indictment with prejudice.
On appeal, the State contends that the trial court lacked the authority to dismiss the indictment with prejudice. The State argues, citing People v. Overstreet (1978), 64 Ill. App. 3d 287, 381 N.E.2d 305, that there is no evidence of harassment or bad faith in this case because both of those terms imply intentional misuse of the State's charging power and the defendant has conceded that the State did not act intentionally. The State further maintains that, as to fundamental unfairness, defendant's only credible argument is that of excessive delay.
Defendant responds that the State's repeated attempts to charge him constitute harassment because they have unreasonably annoyed and alarmed him. He further maintains that the State's mismanagement of the case, which has resulted in his being repeatedly charged, whether intentional or not, constitutes harassment. Although the trial court dismissed the indictment because of unnecessary delay, defendant has not relied on this rationale on appeal. Nevertheless, as this was the basis of the dismissal, we shall first address the correctness of the trial court's reasoning in this regard.
A circuit court may dismiss criminal charges before trial only when authorized to do so by supreme court rule, statute, or when there has been a clear denial of due process. (People v. Fleet (1988), 168 Ill. App. 3d 126, 130, 522 N.E.2d 244.) Generally, a trial court has the inherent authority to dismiss a charge before trial where there has been an unequivocally clear denial of due process, but must proceed with restraint and ascertain preindictment denial of due process only with certainty. (People v. Lawson (1977), 67 Ill. 2d 449, 456-57, 367 N.E.2d 1244.) In the context of preindictment delay, a defendant must first make a clear showing of actual and substantial prejudice. (Lawson, 67 Ill. 2d at 459, 367 N.E.2d at 1248.) If he does so, the burden then shifts to the State to show the reasonableness, if not the necessity, of the delay. (Lawson, 67 Ill. 2d at 459, 367 N.E.2d at 1248.) Finally, if this two-step process ascertains both substantial prejudice and reasonableness of the delay, then the court must balance the interests of the defendant and the public in ...