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08/31/89 the People of the State of v. Jon Jones

August 31, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT

v.

JON JONES, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

543 N.E.2d 1322, 188 Ill. App. 3d 183, 135 Ill. Dec. 575 1989.IL.1353

Appeal from the Circuit Court of Jackson County; the Hon. Robert Howerton, Judge, presiding.

APPELLATE Judges:

JUSTICE CHAPMAN delivered the opinion of the court. HARRISON and RARICK, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CHAPMAN

This appeal arises from matters involving three separate informations filed against the defendant Jon Jones. In cause No. 85--CM--382, an information was filed on August 23, 1985, charging the defendant with the August 21, 1985, batteries of two individuals. Jon Jones pled guilty to the charges and was placed on supervision for a period of 24 months, said period to terminate on August 23, 1987.

In cause No. 87--CM--10 the State on January 12, 1987, filed an information charging the defendant with the January 11, 1987, offenses of driving under the influence in Carbondale, Illinois, battery and aggravated battery. Trial in the matter was scheduled for April 13, 1987. Motion for continuance was filed by the defendant April 13, 1987. The State filed a similar motion on April 14, 1987, contending that a witness was scheduled for surgery that date. Subsequently on May 7, 1987, the State filed a motion to continue the case beyond the May 11, 1987, trial setting. The State alleged in support of its motion that it recently learned that it would be held to trial in another case, before Judge Howerton, which was set on March 11, 1987, for May 11, 1987, and that it had an out-of-town witness who had been notified in that case. The State's Attorney further alleged that he was assigned to try both cases and would be unable to try them concurrently.

On Monday, May 11, 1987, Judge Watt advised the parties that Judge Howerton told him that he would allow the State to try the Jon Jones case first. Judge Watt thereupon denied the State's motion for continuance. The assistant State's Attorney informed the court that he was not notified that the Jon Jones case was to be tried first; that he was prepared to try the other case today and not the Jones matter; and that he had notified no witnesses in the Jones case for today. Defense counsel asserted that another State's Attorney could have taken over the case, to which the State's Attorney replied that none of the other assistants were available. The State opined that it would have to nol-pros the case, whereupon the court advised the State that it would need the court's concurrence to do that, and the court was not going to consent to a nolle prosequi. The court then denied the State's motion for continuance. The docket entry of May 11, 1987, reads, "Court dismisses case based on People v. Lawson." (People v. Lawson (1977), 67 Ill. 2d 449, 367 N.E.2d 1244.) The State did not appeal the court's order of dismissal.

On August 21, 1987, the State filed a petition to revoke supervision alleging that on January 11, 1987, the defendant committed the offense of driving under the influence while driving in Carbondale, Illinois. Defendant filed a motion to dismiss, claiming that the revocation was precluded by the doctrine of collateral estoppel, where the predicate driving under the influence offense had been dismissed in cause No. 87--CM--10 and the State did not perfect an appeal therefrom. The trial Judge granted the motion to dismiss.

In a third cause, case No. 87--CF--281, the State filed an information on August 28, 1988, charging the defendant with the January 11, 1987, offenses of aggravated battery and driving under the influence. Defendant filed a motion to dismiss on the ground that the State was estopped from refiling the charges where it did not appeal from the order of dismissal, which was based on a finding that a continuance would result in a due process violation under People v. Lawson. The trial Judge granted the motion to dismiss upon a finding that "the information in this case, and the prosecution sought to be commenced thereby, is barred by virtue of the order dismissing said case No. 87--CM--10 upon the authority of People v. Lawson." The State filed its notice of appeal in cause Nos. 85--CM--382 and 87--CF--281 on March 8, 1988.

The issues for our review are: (1) in No. 87--CF--281, whether following dismissal of the original charges upon denial of its motion for continuance, the State was entitled to refile without appealing the dismissal order, and (2) in No. 85--CM--382, whether assuming the State was precluded from refiling the charges, it could file a petition to revoke supervision in another case, based upon those offenses.

With regard to the first issue, the defendant first raises the argument that the State failed to perfect an appeal of dismissal of the first prosecution (cause No. 87-CM-10) within the 30-day period permitted by Supreme Court Rule 606 (107 Ill. 2d R. 606). Defendant contends that the State's failure to perfect an appeal operated to bar review of the dismissal of the first prosecution in this case and operated to bar the refiling of the charges. Defendant argues that dismissal of the first prosecution was appealable by the State pursuant to Supreme Court Rule 604(a)(1). Under that rule the State may appeal, inter alia, from an order suppressing evidence or "from an order or judgment the substantive effect of which results in dismissing a charge for any of the grounds enumerated in section 114-1 of the Code of Criminal Procedure of 1963." (107 Ill. 2d R. 604) Section 114-1 (Ill. Rev. Stat. 1983, ch. 38, par. 114-1) lists grounds on which a charge may be dismissed, but only by way of a pretrial motion.

The dismissal here did not fall within any of the grounds listed in section 114--1. The State's right to appeal is not limited, however, to those orders specifically listed therein. Any order that has the effect of dismissing the charges against the defendant is also appealable by the State. (People v. Dellecarto (1978), 67 Ill. App. 3d 490, 495, 384 N.E.2d 902, 906; see also People v. Boyt (1985), 109 Ill. 2d 403, 411, 488 N.E.2d 264, 268.) In People v. Lawson (1977), 67 Ill. 2d 449, 455, 367 N.E.2d 1244, 1247, our Illinois Supreme Court recognized that Rule 604(a) was not meant to reduce the State's right of appeal from a dismissal to only the grounds set forth in section 114--1 but also to include those instances where the substantive effect would be a dismissal of the charge. It has been held as being consistent with Rule 604(a) that an order dismissing a criminal charge should be treated as appealable unless the trial court has indicated that further proceedings are contemplated. People v. Harris (1979), 68 Ill. App. 3d 12, 15, 385 N.E.2d 789, 792.

Case law indicates that where the trial court gives the State a specific period of time to file an amended charge or orders that the defendant be held on bond pending further proceedings, the intent to dismiss the charge is negated by the court's contemplation of further proceedings, and thus such an order is not appealable. (People v. Scholin (1975), 62 Ill. 2d 372, 373, 342 N.E.2d 388, 389; People v. Heddins (1977), 66 Ill. 2d 404, 406, 362 N.E.2d 1260, 1261.) The docket entry showing the court's order of dismissal in cause No. 87--CM--10 reads, "Court dismisses case based on People v. Lawson." There is no indication on the face of the order that the court contemplated further proceedings in the matter. Also, review of Lawson, which the court referenced, does not suggest that Lawson was cited for the proposition that further proceedings in the case were anticipated by the Judge. From a review of the record, the court's concern that the State was not prepared for trial in defiance of the Judge's setting of the trial date with notice to the parties in advance of trial was readily apparent. In light of the record and the holding of People v. Lawson, we can only assume Lawson was cited for that opinion's ...


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