People v. Rotramel

• Decision Date: 04 May 1972
• Docket Number: 71--142,71--363,Gen. Nos. 71--141
• Citation: 5 Ill.App.3d 196,282 N.E.2d 484
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Wayne ROTRAMEL, Defendant-Appellee. PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Molly J. CAMPBELL, Defendant-Appellee. PEOPLE of the State of Illinois, Plaintiff-Appellant, v. John F. PRELLO, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 484

282 N.E.2d 484

5 Ill.App.3d 196

PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Wayne ROTRAMEL, Defendant-Appellee.

PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Molly J. CAMPBELL, Defendant-Appellee.

PEOPLE of the State of Illinois, Plaintiff-Appellant, v. John F. PRELLO, Defendant-Appellee.

Gen. Nos. 71--141, 71--142, 71--363.

Appellate Court of Illinois, Second District.

May 4, 1972.

Wm. V. Hopf, State's Atty., Ralph J. Gust, Asst. State's Atty., James Murphy, Special Asst. State's Atty., Wheaton, for plaintiff-appellant.

O'Brien, Burnell, Puckett & Barnett, Aurora, for defendants-appellees.

SEIDENFELD, Presiding Justice.

The above appeals, each by the State from an order of the trial court, were consolidated by this Court for disposition. All defendants were represented by counsel and each was separately charged with driving a motor vehicle while under the influence of intoxicating liquor (Ill.Rev.Stat.1969, Ch. 95 1/2, Sec. 11--501). In each, the trial court, on its own motion, and over objection by the State, amended the face of the complaint to charge the offense of reckless driving (Ill.Rev.Stat.1969, Ch. 95 1/2, Sec. 11--503) and, without hearing evidence, accepted a plea of guilty to the reduced charge, entered a fine of $100 and assessed costs in the sum of $10.

The cases differ only in the following respects: Rotramel was previously tried under Sec. 11--501, resulting in a 'hung jury'; Prello had also been charged with improper lane usage which was dismissed by the court on its own motion, and Campbell was ordered, in addition to fine and costs, to deposit her drivers license with the court for six months (the period was later amended to one month).

The threshold question raised by the defendants is whether the State has the right to appeal. Supreme Court Rule 604, Ill.Rev.Stat.1971, c. 110A, § 604, provides (in part pertinent here) that the State may appeal only 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 . . .' (Ill.Rev.Stat.1969, Ch. 38, Sec. 114--1). The State argues that the court, by reducing the charge, in effect dismissed the original charge brought. In The People v. Love, 39 Ill.2d 436, 438--440, 235 N.E.2d 819 (1968), it was held that the intent of Section 114--1 was not to reduce the State's Attorney's right of appeal to only the ten grounds set forth in the statute, but to include within that right those instances whereby the substantive effect of the judgment would be the dismissal of the indictment, information or complaint. See also, The People v. Petropoulos, 34 Ill.2d 179, 181, 214 N.E.2d 765 (1966), and The People v. Finkelstein, 372 Ill. 186, 192, 23 N.E.2d 34 (1939).

We agree with the State that the substantial effect of amending the complaint and accepting a plea on a lesser charge substituted by the judge amounted to a dismissal of the complaint for driving under the influence of intoxicating liquor. We conclude that the State could properly appeal.

It is conceded that the State could have re-filed the original charge or petitioned for a Writ of Mandamus to seek to expunge the court's order. Re-filing would be a burdensome procedure under the circumstances and amount to a collateral attack upon the court's order; while Mandamus, though an appropriate action, is an extraordinary remedy which the State was not required to pursue when the relief it seeks may be obtained upon direct appeal.

The court was clearly without authority to proceed as it did. By statute the State's Attorney is charged with the commencement and prosecution of criminal cases within the county. Ill.Rev.Stat.1969, Ch. 14, Sec. 5. In the exercise of his public duty, he is granted certain discretionary powers, one of which is to determine the offense which can and should properly be charged. Article III of the Illinois Constitution, S.H.A., divides the powers of government among the legislative, executive and judicial departments and provides that none of these shall exercise powers belonging to the others. The State's Attorney's office is a part of the executive branch. It is clear that the judicial department may not take as its own discretionary powers vested in an executive officer. The People v. Rhodes, 38 Ill.2d 389, 396, 231 N.E.2d 400 (1967); The People ex rel. Woll v. Graber, 394 Ill. 362, 370--371, 68 N.E.2d 750 (1946); People v. Baron, Ill.App., 264 N.E.2d 423, 425--426 (1970).

We have been furnished with no authority under which the court may dismiss, nolle prosse or amend a charge on its own motion, for no defect in pleading and with no evidence taken. The extent of the court's authority relative to the charge to be brought is to review the attempted exercise of discretion when the State's Attorney is the one seeking to nolle prosse. The People ex rel. Hoyne v. Newcomer, 284 Ill. 315, 325, 120 N.E. 244 (1918); The People v. Sears, 49 Ill.2d 14, 29, 273 N.E.2d 380 (1971); The People ex rel. Castle v. Daniels, 8 Ill.2d 43, 52, 132 N.E.2d 507 (1956).

The trial court's...