{ "id": 2689135, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ROBERT P. PERUSCINI, Defendant-Appellee", "name_abbreviation": "People v. Peruscini", "decision_date": "1989-09-27", "docket_number": "No. 2-88-0905", "first_page": "803", "last_page": "808", "citations": [ { "type": "official", "cite": "188 Ill. App. 3d 803" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "375 N.E.2d 893", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "896" } ], "opinion_index": 0 }, { "cite": "59 Ill. App. 3d 590", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3357311 ], "pin_cites": [ { "page": "594" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/59/0590-01" ] }, { "cite": "407 U.S. 514", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9139028 ], "weight": 9, "pin_cites": [ { "page": "530" }, { "page": "117" }, { "page": "2192" }, { "page": "530" }, { "page": "117" }, { "page": "2192" } ], "opinion_index": 0, "case_paths": [ "/us/407/0514-01" ] }, { "cite": "367 N.E.2d 1244", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1246" } ], "opinion_index": 0 }, { "cite": "67 Ill. 2d 449", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5812072 ], "pin_cites": [ { "page": "455" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/67/0449-01" ] }, { "cite": "444 N.E.2d 1374", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "1380" }, { "page": "1380" }, { "page": "1381" } ], "opinion_index": 0 }, { "cite": "112 Ill. App. 3d 90", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5433820 ], "weight": 3, "pin_cites": [ { "page": "97-98" }, { "page": "98" }, { "page": "98" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/112/0090-01" ] } ], "analysis": { "cardinality": 541, "char_count": 11794, "ocr_confidence": 0.778, "pagerank": { "raw": 6.49032862904919e-08, "percentile": 0.39928022830674686 }, "sha256": "0cad953f37a982388c6e986db19a5b3b9aace355e4669d609a6c6caf0715267e", "simhash": "1:49e9001c72aacdb4", "word_count": 2009 }, "last_updated": "2023-07-14T17:36:06.130198+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. ROBERT P. PERUSCINI, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE NASH\ndelivered the opinion of the court:\nThe State appeals from an order entered by the circuit court of Du Page County dismissing traffic violation charges against defendant, Robert P. Peruscini, on due process grounds. The State contends that the trial court was without authority to do so and that defendant\u2019s due process rights were not violated. We reverse and remand.\nDefendant was charged by complaint with driving under the influence of alcohol (Ill. Rev. Stat. 1987, ch. 95\u00bd, par. 11 \u2014 501(a)(2)), as well as improper lane usage and failure to wear a seatbelt. Defendant was arraigned, and his case was set for trial on June 16, 1988. Prior to the trial date, however, both the State and the defendant requested a continuance. The State asserted that a material witness, Officer C\u00f3rtese, was unavailable; defendant asserted that his attorney had suffered a back injury which required prolonged medical care. Defendant suggested several dates in August 1988 for trial, and the case apparently was reset for August 9. On the trial court\u2019s docketing sheet, however, the \u201c8/9\u201d date has been scratched out and the following appears: \u201c(Tel Df Atty Lf Msg) (Date change from 8/9 to 8/16).\u201d\nOn August 16, 1988, both the State and defendant appeared at the 10:30 court call and answered ready, and the court placed the matter on the 1:30 call for trial. At 1:30, the State requested a continuance because Officer C\u00f3rtese was unavailable. The assistant State\u2019s Attorney explained to the court that on August 9 he and the officer had appeared ready for trial, but were then informed that the case had been continued. When the assistant State\u2019s Attorney verified the new trial date, he sent notice to Officer C\u00f3rtese, but he could not be sure that the officer had received notice, and he had been unable to contact him yet that day. The trial judge could not recall who had made the request for the August 16 date, but he did remember calling defense counsel\u2019s office to advise him of the new date.\nIn responding to the State\u2019s motion, the trial judge stated that he did not think it was \u201cfair\u201d that the State had answered ready in the morning, requiring the defense attorney to \u201cstay all morning here through a court call,\u201d and that it was not fair \u201cthat the defendant should not be allowed to proceed under these circumstances.\u201d The court denied the State\u2019s motion for a continuance. The assistant State\u2019s Attorney then advised the court that the State was not prepared for trial and would not proceed. The defendant then made a motion to dismiss the charges, and the trial court stated:\n\u201cTHE COURT: Alright. Defense motion to dismiss by answering ready for trial at 10:30 and holding the defense and his witness here until 1:30 in the afternoon, having no affidavit to present to the Court at this time; the defendant\u2019s motion to dismiss under due process grounds is granted.\u201d\nThe assistant State\u2019s Attorney advised the court that, if the court was dismissing the cause because the State had failed to provide an affidavit or a written motion, those documents could be provided \u201cwithin five minutes.\u201d In response, the trial court stated:\n\u201cTHE COURT: Alright. Well, I will go on the record and say that is one of my grounds, but I think there is another ground that there is something inherently unfair about having people here for a trial at 10:30 in the morning, answering ready for trial, the State answering ready for trial, I hold people here all morning with their witnesses and I bring them back here at 1:30 for trial and then we get this situation.\u201d\nThe assistant State\u2019s Attorney told the court that he believed it was also inherently unfair that the court date had previously been changed by the judge, apparently by telephone, without notice to the State or the officer. The trial court responded:\n\u201cTHE COURT: I am sure I didn\u2019t just notify the defense attorney on my own behalf or the Court\u2019s \u2014 I would not have given this matter an August 16th date without notifying the State.\u201d\nThe assistant State\u2019s Attorney reiterated that he \u201creceived no notice of the change in the trial date, *** absolutely none, and neither did the officer.\u201d He then stated that if fairness is the issue, \u201cit is only appropriate to consider fairness to all concerned.\u201d Whereupon, the court repeated that the motion to dismiss was granted.\nOn appeal, the State contends that the trial court abused its discretion in denying the State\u2019s motion for a continuance because the State had been diligent in pursuing the prosecution and the trial court was without authority to dismiss the charges against defendant.\nGenerally, whether to grant or to deny a motion for a continuance is within the sound discretion of the trial court, and the diligence shown by the movant is to be considered in weighing the exercise of discretion. (Ill. Rev. Stat. 1987, ch. 38, par. 114 \u2014 4(e); People v. Verstat (1983), 112 Ill. App. 3d 90, 97-98, 444 N.E.2d 1374, 1380.) The trial court\u2019s decision to grant or deny a continuance depends on the facts and circumstances existing at the time of the request, and its decision will not be disturbed on review absent a showing of a clear abuse of discretion. (Verstat, 112 Ill. App. 3d at 98, 444 N.E.2d at 1380.) A trial court should deny continuances sought by the State where defendant\u2019s right to a speedy trial pursuant to section 103 \u2014 5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 103 \u2014 5) will be improperly obstructed. (Verstat, 112 Ill. App. 3d at 98, 444 N.E.2d at 1381.) As set forth below, however, defendant\u2019s statutory and constitutional rights to a speedy trial have not been impeded in this case, and we examine the facts and circumstances existing at the time of the State\u2019s request for a continuance to determine whether there was an abuse of discretion in denying the State\u2019s motion for a continuance.\nThe State\u2019s motion was based on the unavailability of a material witness. Section 114 \u2014 4(c)(2) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 114 \u2014 4(c)(2)) provides that a motion for continuance made by the State more than 30 days after arraignment may be granted when \u201c[a] material witness is unavailable and the prosecution will be prejudiced by the absence of his testimony.\u201d The unavailability of Officer C\u00f3rtese, a material witness, was, therefore, a proper basis for the State\u2019s request. Although this was the State\u2019s second request for a continuance, the prior continuance of this case was also sought by the defendant as well. The length of the first continuance, June 16 to August 9, was determined by the defense. Although the State answered ready for trial on the morning of August 16, and the defendant, his witness, and his attorney were inconvenienced by the State\u2019s request for a continuance in the afternoon, the State had been equally inconvenienced when the trial date had been changed from August 9 to August 16 without notice. The assistant State\u2019s Attorney represented that on August 9 the State had appeared with its witness prepared for trial, and when the State learned of the new trial date, it notified the witness. Although the State\u2019s motion was not in writing and supported by affidavit, as required by section 114\u2014 4(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 114 \u2014 4(a)), the assistant State\u2019s Attorney offered to provide the necessary documents almost immediately. Given the emergency nature of the motion, we consider that the State substantially complied with the rule. Under the circumstances presented here, we believe that the State was diligent in prosecuting the cause, and the court\u2019s denial of the State\u2019s motion for a continuance was an abuse of discretion.\nThe State also contends that the trial court erred in dismissing the complaint against defendant which, it stated, was on \u201cdue process grounds.\u201d\"The only due process right which might conceivably be implicated here, and which defendant now argues, is his right to a prompt trial. Trial courts have statutory authority to dismiss charges against defendants for any one of the reasons set forth in section 114 \u2014 1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 114 \u2014 1), including the failure to provide defendant with a speedy trial. Trial courts also have an inherent authority to dismiss charges where there has been a clear denial of due process even though that is not a ground stated in section 114 \u2014 1. (People v. Lawson (1977), 67 Ill. 2d 449, 455, 367 N.E.2d 1244, 1246.) In this case, defendant\u2019s constitutional and statutory rights to a speedy trial were not denied.\nDefendant urges us to analyze the alleged due process violation here in light of Barker v. Wingo (1972), 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182. In Barker, the United States Supreme Court formulated a balancing test for determining when the constitutional right to a speedy trial has been denied. The four factors to be considered are: the length of the delay, the reason for the delay, the defendant\u2019s assertion of his right, and prejudice to the defendant. (Barker, 407 U.S. at 530, 33 L. Ed. 2d at 117, 92 S. Ct. at 2192; People v. Adams (1978), 59 Ill. App. 3d 590, 594, 375 N.E.2d 893, 896.) In applying the test, however, the Supreme Court has stated that the length of delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance. (Barker, 407 U.S. at 530, 33 L. Ed. 2d at 117, 92 S. Ct. at 2192.) The delay which the trial court and defendant focus on in this case is the three-hour period between the morning and afternoon court calls. A three-hour delay between court calls is not the type of delay which gives rise to a Barker analysis as it cannot be presumptively prejudicial. Furthermore, the trial court here denied the State\u2019s motion before a specific date or period of continuance could be requested, and the actual length of the delay engendered by the State\u2019s motion was not determined. Because we do not know the length of the delay, we have no reason to conclude it might be prejudicial. We note, further, that the defendant made no demand for a speedy trial, the State presented a valid reason for the requested continuance, and, although defendant may have been annoyed or inconvenienced by a continuance, he has failed to demonstrate how his defense was impaired by the request for a continuance. Defendant\u2019s constitutional right to a speedy trial was not violated.\nDefendant\u2019s statutory right to a speedy trial was not violated either. Section 103 \u2014 5(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 103 \u2014 5(b)) requires that every person on bail or recognizance shall be tried by the court within 160 days from the date defendant demands trial. In this case, defendant did not demand trial.\nWe conclude that under the circumstances of this case, defendant\u2019s statutory and constitutional rights to a speedy trial or due process were not violated, and the trial court was without authority to dismiss the complaint against defendant.\nAccordingly, the judgment of the circuit court of Du Page County is reversed and the cause remanded for further proceedings.\nReversed and remanded.\nMcLAREN and REINHARD, JJ., concur.", "type": "majority", "author": "JUSTICE NASH" } ], "attorneys": [ "James E. Ryan, State\u2019s Attorney, of Wheaton (William L. Browers and Cynthia N. Schneider, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People.", "Joseph M. Giglio, of Onesto, Giglio, Meltreger & Associates, of Chicago, for appellee." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ROBERT P. PERUSCINI, Defendant-Appellee.\nSecond District\nNo. 2 \u2014 88\u20140905\nOpinion filed September 27, 1989.\nJames E. Ryan, State\u2019s Attorney, of Wheaton (William L. Browers and Cynthia N. Schneider, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People.\nJoseph M. Giglio, of Onesto, Giglio, Meltreger & Associates, of Chicago, for appellee." }, "file_name": "0803-01", "first_page_order": 825, "last_page_order": 830 }