{ "id": 2926800, "name": "The People of the State of Illinois, Plaintiff-Appellant, v. Michael Guido et al., Defendants-Appellees", "name_abbreviation": "People v. Guido", "decision_date": "1973-05-29", "docket_number": "No. 72-186", "first_page": "1067", "last_page": "1071", "citations": [ { "type": "official", "cite": "11 Ill. App. 3d 1067" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "433 P.2d 339", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 4604984 ], "pin_cites": [ { "page": "340" } ], "opinion_index": 0, "case_paths": [ "/colo/164/0163-01" ] }, { "cite": "269 N.E.2d 84", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1967, "pin_cites": [ { "page": "86-87" } ], "opinion_index": 0 }, { "cite": "133 Ill.App.2d 244", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2471248 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/133/0244-01" ] }, { "cite": "50 Ill.2d 136", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2912891 ], "pin_cites": [ { "page": "140" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/50/0136-01" ] }, { "cite": "35 Ill.2d 80", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5379417 ], "year": 1972, "pin_cites": [ { "page": "81-82" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/35/0080-01" ] }, { "cite": "394 Ill. 177", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2471064 ], "pin_cites": [ { "page": "179" } ], "opinion_index": 0, "case_paths": [ "/ill/394/0177-01" ] }, { "cite": "246 A.2d 430", "category": "reporters:state_regional", "reporter": "A.2d", "pin_cites": [ { "page": "432" } ], "opinion_index": 0 }, { "cite": "431 Pa. 536", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 1917448 ], "opinion_index": 0, "case_paths": [ "/pa/431/0536-01" ] }, { "cite": "86 Ill.App.2d 139", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2550903 ], "pin_cites": [ { "page": "143" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/86/0139-01" ] }, { "cite": "412 Ill. 145", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2665388 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/ill/412/0145-01" ] }, { "cite": "101 Ill.App.2d 377", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2901458 ], "weight": 2, "pin_cites": [ { "page": "379-380" }, { "page": "380" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/101/0377-01" ] }, { "cite": "69 A.L.R. 240", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "270 A.2d 343", "category": "reporters:state_regional", "reporter": "A.2d", "weight": 2, "pin_cites": [ { "page": "344-345" }, { "page": "345" } ], "opinion_index": 0 }, { "cite": "10 Md.App. 300", "category": "reporters:state", "reporter": "Md. App.", "case_ids": [ 2340423 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/md-app/10/0300-01" ] }, { "cite": "5 Ill.App.3d 196", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2523739 ], "year": 1970, "pin_cites": [ { "page": "198-199" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/5/0196-01" ] }, { "cite": "415 Ill. 79", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2684118 ], "weight": 2, "year": 1972, "pin_cites": [ { "page": "86, 87" }, { "page": "85-89" } ], "opinion_index": 0, "case_paths": [ "/ill/415/0079-01" ] } ], "analysis": { "cardinality": 489, "char_count": 8129, "ocr_confidence": 0.782, "pagerank": { "raw": 5.216643477473696e-07, "percentile": 0.9407013690759577 }, "sha256": "bdef429babce86b354e42d5a0e79cab37c6cfcf1b8921c5ed0c6796d36d23b5a", "simhash": "1:0defc94d6f0ae5e2", "word_count": 1377 }, "last_updated": "2023-07-14T15:22:35.785791+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "The People of the State of Illinois, Plaintiff-Appellant, v. Michael Guido et al., Defendants-Appellees." ], "opinions": [ { "text": "Mr. JUSTICE SEIDENFELD\ndelivered the opinion of the court:\nThis appeal by the State questions the authority of the trial court to suppress confessions and evidence without a hearing on the defendants\u2019 motion to suppress, and to enter an order dismissing misdemeanor charges for want of prosecution.\nThe defendants were arrested in Du Page County on September 28, 1971. Patrick Riedy, Jr. was charged with the unlawful possession of less than 2.5 grams of marijuana, drag racing and attempting to elude a police officer. Michael F. Guido was charged with the unlawful possession of marijuana, less than 2.5 grams. Both defendants pleaded not guilty. The cases were first set for a November 19, 1971, trial date in Du Page County. On November 15, 1971, the defendants filed motions to suppress confessions and evidence, for discovery and for a continuance. The cases were first continued to December 10, 1971, and later on defendants\u2019 motion to December 22, 1971. On November 17, 1971, the State filed an answer to defendants\u2019 discovery motion.\nOn January 6, 1972, the defendant Patrick Riedy, Jr. filed a motion for a change of venue from Du Page County to Kane County. The motion was granted and the cases of both defendants were ordered transferred to the 16th Judicial Circuit, Kane County, \u201cfor hearing on all pending motions, trial and all further proceedings\u201d. It was further ordered that all files and papers be transferred to the clerk of the Circuit Court of Kane County. While it does not appear in the order, the transcript of the proceedings before the transferring judge in Du Page County reflects that he recused himself and further stated that the matters would be transferred for setting for trial by the chief judge of the Circuit Court of Kane County. There is nothing in the record to indicate that the cases appeared before the chief judge in Kane County, nor is the manner in which the cases appeared before the trial judge in Kane Comity on March 23, 1972, apparent from the record. The attorney for the defendants was present on this date but the State was not represented.\nWithout hearing evidence, the court below granted defendants\u2019 motion to suppress on the ground that the State had failed to appear, and dismissed the cases on the same ground. The State\u2019s motion to vacate the orders was denied, from which order it appeals under Supreme Court Rule 604(a)(1). Ill. Rev. Stat. 1971, ch. 110A, par. 604(a)(1).\nThe State contends that the court did not have authority to suppress confessions and evidence without first conducting a hearing on defendants' motion; and that the trial court did not have authority to enter an order of dismissal for want of prosecution.\nWe agree with the State\u2019s contention that the trial court did not have authority to enter the order of dismissal for want of prosecution. The comt on its own motion, or on the motion of the defendant, has no power before trial, in the absence of a statute, to dismiss criminal charges or enter a nolle prosequi in a criminal case, since this power rests initially and primarily with the prosecuting officer. (People ex rel. Elliott v. Covelli (1953), 415 Ill. 79, 86, 87; People v. Rotramel (1972), 5 Ill.App.3d 196, 198-199; State v. Hunter (1970), 10 Md.App. 300, 270 A.2d 343, 344-345; 22A C.J.S., Crim. Law, sec. 457(c); Annot., 69 A.L.R. 240.) The court may dismiss an indictment, information or complaint only upon the grounds set forth in section 114 \u2014 1 of the Code of Criminal Procedure. (People v. Shick (1968), 101 Ill.App.2d 377, 379-380.) A dismissal for want of prosecution does not come within any of the statutory grounds set forth in section 114\u20141. Ill. Rev. Stat. 1971, ch. 38, par. 114\u20141.\nThe defendants rely heavily on the fact that dismissal for want of prosecution has been held to be an inherent power of the court in civil actions. (Agran v. Checker Taxi Co. (1952), 412 Ill. 145; Casillas v. Rosengren (1967), 86 Ill.App.2d 139, 143.) However, in criminal cases the state is a party and considerations of public safety and welfare are directly involved. Thus it is the representative of the people who has\nbeen vested with the discretion to dismiss. (See People ex rel. Elliott v. Covelli (1953), 415 Ill. 79, 85-89.) In addition, in criminal cases the protection against want of prosecution is embodied in the constitutional right to a speedy trial and the statutory enactments requiring a trial within a specified time. (Ill. Rev. Stat. 1971, ch. 38, par. 103\u20145. See People v. Shick (1968), 101 Ill.App.2d 377, 380; State v. Hunter (1970), 10 Md.App. 300, 270 A.2d 343, 345.) Preserving a defendant\u2019s right to a speedy trial also preserves the court\u2019s interest in eliminating from the dockets cases that have not been prosecuted for lengthy periods of time.\nThe conclusion we have reached does not leave the court powerless to control its calendar. Besides discharging cases pursuant to defendants\u2019 rights, the court has contempt powers to require the State to appear. In the unlikely event that a prosecuting officer should refuse to proceed to trial after being ordered by the court to do so, the trial judge may order that the case proceed to trial. See Commonwealth v. Dipasquale (1968), 431 Pa. 536, 246 A.2d 430, 432.\nThe defendants do not address themselves to the remaining issue raised by the State, that the court had no authority to allow defendants\u2019 motion to suppress in the absence of the prosecutor and without a hearing. They contend that tire dismissal of tire cases would have been entered irrespective of the ruling on the prior motion. But, as the State points out, while the dismissal alone would permit a further prosecution of aU of the charges (see People v. Watson (1946), 394 Ill. 177, 179), the suppression order becomes res judicata if not changed on appeal. (People ex rel. MacMillian v. Napoli (1966), 35 Ill.2d 80, 81-82; People v. Taylor (1972), 50 Ill.2d 136, 140.) In practical terms, the suppression ruling may preclude further proceedings for lack of evidence. If granting the suppression motion is grounded on failure to prosecute, it thus may be tantamount to dismissing the charge on its merits prior to trial, and equaUy beyond the court\u2019s authority.\nOn the facts of this case we agree with the contention of the State that the court had no authority to suppress without a hearing as provided under sections 114 \u2014 11 and 114 \u2014 12 of the Code of Criminal Procedure. (Ill. Rev. Stat. 1971, ch. 38, pars. 114\u201411 and 114\u201412.) These sections require sufficient factual allegations of illegality and involuntariness and a hearing thereon before evidence may be suppressed. Unless the record and the evidence are sufficient to sustain the ruling of the trial court, the suppression order is invalid. (People v. Green (1972), 133 Ill.App.2d 244.) Here no hearing was held and no evidence adduced. The order of suppression solely on the purported basis of lack of prosecution was invalid.\nWe therefore reverse both the orders of dismissal and the orders of suppression and remand the case to the trial court for further proceedings consistent with this opinion.\nReversed and remanded with directions.\nGUILD, P. J., and T. MORAN, J., concur.\nIn its motion to vacate below, the State contended that it had, to the best of its knowledge, no prior notice of the setting before the trial judge, in the context of its claim that it was not dilatory. In its printed brief and argument here the State contends that \u201can examination of circumstances mitigating the State\u2019s action need not be conducted * \u00b0 The question of notice or absence of it therefore has not been sufficiently placed in issue by the State.\nThe dismissal of criminal charges before trial is, in effect, a nolle prosequi. See Commonwealth v. Brandano (Mass. 1971), 269 N.E.2d 84, 86-87; People v. Dennis (Col. 1967), 433 P.2d 339, 340.", "type": "majority", "author": "Mr. JUSTICE SEIDENFELD" } ], "attorneys": [ "William V. Hopf, State\u2019s Attorney, of Wheaton, and James W. Jerz, of Elgin, for the People.", "Robert F. Casey, of Geneva, for appellees." ], "corrections": "", "head_matter": "The People of the State of Illinois, Plaintiff-Appellant, v. Michael Guido et al., Defendants-Appellees.\n(No. 72-186;\nSecond District\nMay 29, 1973.\nWilliam V. Hopf, State\u2019s Attorney, of Wheaton, and James W. Jerz, of Elgin, for the People.\nRobert F. Casey, of Geneva, for appellees." }, "file_name": "1067-01", "first_page_order": 1089, "last_page_order": 1093 }