Appeal from the Circuit Court of Kane County. Nos. 91-CF-1480, 91-CF-1481. Honorable Melvin D. Dunn, Judge, Presiding.
Released for Publication October 18, 1994.
The opinion of the court was delivered by: Woodward
JUSTICE WOODWARD delivered the opinion of the court:
The defendants, Ossie Lock and Sonya Lock, were charged by information on September 11, 1991, with aggravated battery and criminal damage to property. Both defendants were released on bond. On August 25, 1992, the prosecutor filed additional informations charging armed violence, attempted murder, and aggravated battery. The State appeals from the circuit court's orders granting the defendants' motions to dismiss counts three, four, and five of the informations for having been added in violation of the defendants' right to a speedy trial. On appeal, the State argues that the trial court erred in dismissing the counts where the defendants had been released on bond and where neither had entered a demand for a speedy trial. We reverse and remand.
The defendants were initially represented by the public defender's office, but later substituted private counsel. On August 27, 1992, the defendants moved for dismissal of the additional charges and for sanctions, based on prosecutorial misconduct. The trial court denied those motions. On November 5, 1992, the defendants' private counsel moved for leave to withdraw, citing the defendants' failure to cooperate or pay for his services and a potential conflict of interest. On November 6 and November 30, 1992, the trial court granted the defendants' counsel leave to withdraw.
The public defender's office was reappointed to represent the defendants. On January 28 and February 2, 1993, the defendants moved to dismiss the new charges for violation of their speedy-trial rights. The defendants remained free on bond and had not previously made speedy-trial demands. After hearing oral arguments by both parties on the speedy-trial motions, the trial court dismissed counts three through five of the informations, stating:
"THE COURT: Because I agree with you that this is an area that has to be cleared up. I agree absolutely that Howard applies and that Belcher applies and that King applies but I am still stuck with the language of Howard * * *.
THE COURT: I don't know. You're an officer of the court, Mr. Rago, do you know the answer to that question? Do you have the right to appeal if I, if I dismiss the charges?
THE COURT: Whether or not there were continuances and to whom those continuances should be charged has nothing to do with when and under what circumstances the State should file its charges.
Here the armed violence Class X felony is clearly a charge which would have and could have been included in the aggravated battery because the allegations are, are the same, caused great bodily harm.
THE COURT: The motion to dismiss Counts 3, 4 and 5 is granted.
THE COURT: I would urge the State to appeal, Mr. Rago, I know that you are all very busy, but it's an issue ...