{ "id": 3339297, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. EVELYN GERENA et al., Defendants-Appellees", "name_abbreviation": "People v. Gerena", "decision_date": "1978-08-25", "docket_number": "No. 78-392", "first_page": "960", "last_page": "963", "citations": [ { "type": "official", "cite": "63 Ill. App. 3d 960" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "243 N.E.2d 285", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "101 Ill. App. 2d 377", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2901458 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/101/0377-01" ] }, { "cite": "367 N.E.2d 1244", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "67 Ill. 2d 449", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5812072 ], "weight": 4, "pin_cites": [ { "page": "455" }, { "page": "459" }, { "page": "459" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/67/0449-01" ] } ], "analysis": { "cardinality": 383, "char_count": 7315, "ocr_confidence": 0.898, "pagerank": { "raw": 7.283664737253076e-08, "percentile": 0.43349419213243706 }, "sha256": "3cc777aa6ce492a232cb1f9895dc555c51ad9d18d1b8104b227f167822964c37", "simhash": "1:cbd8450476648de8", "word_count": 1212 }, "last_updated": "2023-07-14T19:24:25.660634+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. EVELYN GERENA et al., Defendants-Appellees." ], "opinions": [ { "text": "Mr. JUSTICE MEJDA\ndelivered the opinion of the court:\nOn September 23, 1977, the trial court ordered the dismissals with prejudice of the charges brought by the State against defendants, Evelyn Gerena, Nelson Rivera and Jesus Carrasquillo. The charges were dismissed for want of prosecution upon motion of defendants. The State has appealed, contending that it was error for the trial court to dismiss the charges because it lacked the authority to do so, because the dismissal motions were in improper form, and because it was an abuse of discretion for the trial court to deny the State\u2019s motion for continuance.\nWe reverse. The facts are as follows.\nOn September 10, 1977, defendant Nelson Rivera was charged by complaint with theft and possession of a stolen vehicle. Rivera did not post bond and the case was set to be heard on September 12,1977. Also on September 10, 1977, defendant Jesus Carrasquillo was charged by complaint with criminal trespass to a vehicle. The case was also set to be heard on September 12, 1977, and Carrasquillo was released on his own recognizance. On September 12, 1977, a complaint was filed charging defendant Evelyn Gerena with criminal trespass to a vehicle. She was released on bond pending a September 23, 1977, court appearance.\nOn September 12, 1977, defendants Rivera and Carrasquillo appeared in court. The State was granted a continuance, which the court indicated was final, and the cases were set for trial on September 23, 1977. On September 23, 1977, all three defendants appeared in court, defendant Gerena for the first time. The State again requested a continuance, which the trial court denied. The court pointed out that the previous continuance had been a final one because the complaining officer had not been in court, and that the officer\u2019s failure to appear the second time did not merit a continuance.\nAll three defendants then entered oral motions to dismiss the charges against them. The court ordered dismissal of all charges with prejudice because of the absence of the complaining officer. The State appealed.\nOpinion\nThe sole issue on appeal is whether the trial court properly granted defendants\u2019 motions for dismissals.\nThe State first maintains that the trial court was without the authority to dismiss the charges. The grounds for dismissals before trial are enumerated in section 114 \u2014 1 of the Code of Criminal Procedure of 1963. (Ill. Rev. Stat. 1975, ch. 38, par. 114\u20141.) A dismissal for want of prosecution is not included therein.\nHowever, in People v. Lawson (1977), 67 Ill. 2d 449, 367 N.E.2d 1244, our supreme court recognized the \u201cinherent authority to dismiss an indictment in a criminal case where there has been a clear denial of due process even though that is not a stated ground in section 114 \u2014 1.\u201d (67 Ill. 2d 449, 455.) A two-step process was established which initially places the burden upon the defendant to make \u201ca clear showing of actual and substantial prejudice.\u201d (Emphasis in original.) (67 Ill. 2d 449,459.) Upon a showing of substantial prejudice caused by the delays, the burden then shifts to the State to show that the delay was reasonable. In the event that the trial court finds both substantial prejudice and reasonableness of delay, it must then add a third step and balance the interests of the defendants and the public in making its decision. 67 Ill. 2d 449, 459.\nDefendants contend that they were substantially prejudiced because the State failed to produce its complaining witness. A \u201crepeated continuance,\u201d they argue, \u201cwould have denied\u201d them a prompt trial. They maintain that this delay constitutes a denial of due process and that they have thus met their burden under Lawson.\nWe do not agree. Defendant has shown neither actual nor substantial prejudice. Speculation as to future repeated continuances does not amount to actual prejudice. Nor can a mere continuance, on its own, be considered to substantially prejudice defendants. The record in the instant case shows that no argument was made in support of defendants\u2019 motions for dismissal. Moreover, there was no demand for trial and no objection voiced when the State made its original request for the continuance. Clearly, defendants have made no showing at all of any kind of prejudice. The argument on appeal of the bare conclusion that defendants were substantially prejudiced is not sufficient to bring the case within the Lawson exception to section 114 \u2014 1.\nThe State has cited People v. Shick (1968), 101 Ill. App. 2d 377, 243 N.E.2d 285, in support of its contention that the trial court did not have the authority to dismiss the case. In Shick, the defendant was indicted on April 21, arraigned on May 9, and appeared for trial on May 25. Following a pre-trial conference, defendant had answered ready for trial. The State, however, requested a continuance because some of its witnesses had left. The State\u2019s motion was denied and defendant made a motion to dismiss which was granted.\nOn appeal, this court reversed the trial court and stated that the only grounds for a dismissal prior to trial are those found in section 114 \u2014 1. It went on to state that the only ground within that section that could relate to a dismissal for want of prosecution is that the defendant had not been placed on trial in compliance with section 103 \u2014 5 of the Code of Criminal Procedure of 1963. (Ill. Rev. Stat. 1975, ch. 38, par. 103\u20145.) Section 103\u2014 5 not being in point there, the trial court was found to be without the authority to discharge the defendant pursuant to the pretrial motion for dismissal.\nWe find this case to fall squarely within Shick. Defendants Carrasquillo and Rivera had been in court for proceedings on the charges only once before the dismissal was requested. Defendant Gerena was in court for the first time. No more than 13 days had passed since the charges had been filed against defendants.\nThus, we conclude that, absent a clear showing that would bring defendants within the Lawson exception, a motion for dismissal prior to trial must be based upon one of the grounds found in section 114 \u2014 1. The instant motions for dismissal not being based upon any of the grounds within that section, we find that the trial court improperly granted defendants\u2019 motions to dismiss for want of prosecution.\nIn light of our conclusion that the trial court lacked the authority to dismiss the instant case pursuant to defendants\u2019 oral motion, we need not consider the State\u2019s other contentions regarding the form of defendants\u2019 motions and the propriety of the trial court\u2019s denial of the State\u2019s motion for continuance.\nFor the foregoing reasons, the judgment of the circuit court of Cook County is reversed and the cause remanded for proceedings not inconsistent with this opinion.\nReversed and remanded.\nSULLIVAN, P. J., and LORENZ, J., concur.", "type": "majority", "author": "Mr. JUSTICE MEJDA" } ], "attorneys": [ "Bernard Carey, State\u2019s Attorney, of Chicago (Lee T. Hettinger, Linda Dale Woloshin, and Joseph P. Quirk, Assistant State\u2019s Attorneys, of counsel), for the People.", "James J. Doherty, Public Defender, of Chicago (Brian L. Heise and Timothy P. O\u2019Neill, Assistant Public Defenders, of counsel), for appellees." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. EVELYN GERENA et al., Defendants-Appellees.\nFirst District (5th Division)\nNo. 78-392\nOpinion filed August 25, 1978.\nBernard Carey, State\u2019s Attorney, of Chicago (Lee T. Hettinger, Linda Dale Woloshin, and Joseph P. Quirk, Assistant State\u2019s Attorneys, of counsel), for the People.\nJames J. Doherty, Public Defender, of Chicago (Brian L. Heise and Timothy P. O\u2019Neill, Assistant Public Defenders, of counsel), for appellees." }, "file_name": "0960-01", "first_page_order": 982, "last_page_order": 985 }