People v. Woolsey

• Decision Date: 21 November 1990
• Docket Number: No. 68505,68505
• Court: Illinois Supreme Court
• Parties: , 151 Ill.Dec. 309 The PEOPLE of the State of Illinois, Appellee, v. Thomas E. WOOLSEY, Appellant.

Page 764

564 N.E.2d 764

139 Ill.2d 157, 151 Ill.Dec. 309

The PEOPLE of the State of Illinois, Appellee, v. Thomas E. WOOLSEY, Appellant.

No. 68505.

Supreme Court of Illinois.

Nov. 21, 1990.

Daniel M. Kirwan, Deputy Defender, and E. Joyce Randolph, Asst. Defender, of the Office of the State Appellate Defender, Mount Vernon, for appellant.

Neil F. Hartigan, Atty. Gen., Springfield (Robert J. Ruiz, Sol. Gen., and Terence M. Madsen and Michele I. Lavin, Asst. Attys. Gen., Chicago, of counsel), for the People.

Justice WARD delivered the opinion of the court:

This appeal arises out of a claim of conflict between the State's right to enter a nolle prosequi in a pending prosecution and a defendant's right to a speedy trial. The defendant, Thomas E. Woolsey, was indicted on August 21, 1987, for the murder of Ronald Bunton and other offenses. On August 31, 1987, after being released on bond, the defendant filed a written demand for a speedy trial. On December 14, 1987, the State nol-prossed the charges because of a defect in the indictment and recharged the defendant with the same crimes by way of criminal information. The defendant filed a new demand for a speedy trial on December 16, 1987. On June 21, 1988, the defendant filed a motion to dismiss the charges on the ground that his right to a speedy trial had been violated. Ill.Rev.Stat.1987, ch. 38, par. 103-5(b).

When the case was called on June 30, 1988, the State moved for entry of a nolle prosequi. Defense counsel objected and urged the trial court to decide the speedy-trial question before granting the State's motion. Over the defendant's objection, the court granted the State's motion and entered a nolle prosequi. The defendant appealed and the appellate court dismissed the appeal on the State's motion, holding that the order appealed from was not a final order. (180 Ill.App.3d 534, 129 Ill.Dec. 463, 536 N.E.2d 147.) We granted the defendant's petition for leave to appeal. 107 Ill.2d R. 315.

The defendant raises two issues. First, he argues that the dismissal of criminal charges through a nolle prosequi constitutes a final order or judgment for purposes of appeal. Second, he argues that the trial court erred in failing to conduct a hearing on his motion for discharge on speedy-trial grounds before allowing the State to enter a nolle prosequi.

We first consider whether the dismissal of criminal charges through a nolle prosequi constitutes a final order or judgment for purposes of appeal. Our constitution provides for appeals from final judgments of the circuit court as a matter of right. (Ill. Const.1970, art. VI.) "To be final and appealable, a judgment or order must terminate the litigation between the parties on the merits of the cause, so that, if affirmed, the trial court has only to proceed with the execution of the judgment." (Village of Niles v. Szczesny (1958), 13 Ill.2d 45, 48, 147 N.E.2d 371; see also People ex rel. Mosley v. Carey (1979), 74 Ill.2d 527, 537, 25 Ill.Dec. 669, 387 N.E.2d 325.) A judgment is considered final in a criminal case only after a defendant has been convicted and sentenced. People v. Allen (1978), 71 Ill.2d 378, 16 Ill.Dec. 941, 375 N.E.2d 1283.

The defendant nevertheless argues that an order dismissing criminal charges through a nolle prosequi is a final judgment for purposes of appellate review, because it is a judgment which terminates the prosecution at that point. He argues that the appellate court's decision in People v. A.L. (1988), 169 Ill.App.3d 581, 120 Ill.Dec. 59, 523 N.E.2d 970, supports this view and urges this court to adopt its reasoning.

In People v. A.L. (1988), 169 Ill.App.3d 581, 120 Ill.Dec. 59, 523 N.E.2d 970, the State filed a delinquency petition against a juvenile for the misdemeanor offenses of battery and criminal damage to property. The defendant demanded trial and answered ready for trial. Six months after the petition was filed, the State moved to strike the juvenile petition with leave to reinstate, a procedure referred to as "stricken on leave," or SOL. The minor objected and moved to dismiss the petition for failure to provide him with a speedy trial. Without ruling on the objection, the court granted the State's motion. Subsequently, the minor moved to reinstate the juvenile petition and to dismiss the cause for failure to provide a speedy trial. The trial court denied the motion and the minor appealed. The State moved to dismiss the appeal on the ground that the SOL order was interlocutory in nature and not reviewable under Supreme Court Rule 604, which authorizes appeals from certain interlocutory judgments. (107 Ill.2d R. 604.) The appellate court concluded that the SOL procedure indefinitely prolonged the possibility of prosecution with no predictable termination date and treated the order as a final judgment for purposes of appeal. (People v. A.L. (1988), 169 Ill.App.3d 581, 584, 120 Ill.Dec. 59, 523 N.E.2d 970.) The court considered that the Supreme Court's decision in Klopfer v. North Carolina (1967), 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1, controlled the jurisdictional issue.

In Klopfer, the Supreme Court held that a State may not indefinitely postpone criminal prosecution on an indictment, without justification and over the objection of the accused, through use of a nolle prosequi with leave to reinstate. (Klopfer v. North Carolina (1967), 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1.) Although the Supreme Court in Klopfer found a due process violation under the facts of that case, it did not consider or discuss whether or not the order to nol-pros with leave to reinstate was a final and appealable order. (See also People v. Baskin (1967), 38 Ill.2d 141, 230 N.E.2d 208 (court held that entry of an order striking the complaint with leave to reinstate at the same time that the defendant was demanding trial did not violate her constitutional right to a speedy trial, but the court did not consider whether the order was an appealable judgment).) Thus, the appellate court in People v. A.L. (1988), 169 Ill.App.3d 581, 120 Ill.Dec. 59, 523 N.E.2d 970, improperly relied upon Klopfer as authority for its conclusion that an order striking the juvenile petition with leave to reinstate is a final and, thus, an appealable order. Neither Klopfer nor A.L. supports the defendant's claim that the entry of a nolle prosequi is a final, appealable order.

This court has previously held that the entry of a nolle prosequi is not a final disposition of a case but, like a nonsuit in a civil suit, is a procedure which reverts the matter to the same condition which existed before the commencement of the prosecution. (People v. Watson (1946), 394 Ill. 177, 179, 68 N.E.2d 265.) The effect of a nolle prosequi is to dismiss the indictment or other charging instrument and to permit the defendant to be free without entering into a recognizance to appear when called. (People v. Watson (1946), 394 Ill. 177, 179, 68 N.E.2d 265.) The procedure does not bar subsequent prosecution for the same offenses if it is entered before jeopardy has attached. People v. Watson (1946), 394 Ill. 177, 179, 68 N.E.2d 265.

Accordingly, the order granting the State's motion for a nolle prosequi was an interlocutory, rather than a final, order. No appeal lies from an interlocutory order in the absence of a statute or rule specifically authorizing such review. (People v. Miller (1966), 35 Ill.2d 62, 67, 219 N.E.2d 475.) Although this court has provided by rule for appeals in criminal cases from certain interlocutory judgments (107 Ill.2d R. 604), this rule does not authorize an appeal by a defendant from the grant of a nolle prosequi. In the absence of such authority, it follows that the appellate court correctly determined that it lacked jurisdiction to entertain the defendant's appeal. See Parr v. United States (1956), 351 U.S. 513, 76 S.Ct. 912, 100 L.Ed. 1377 (the dismissal of an indictment is not a final order for purposes of appellate review and a defendant lacks standing to appeal such dismissal).

Notwithstanding the interlocutory nature of the circuit court's order, the defendant argues that this court should exercise its supervisory authority over the trial court and order it to consider his motion to dismiss. (Ill. Const.1970, art. VI, § 16; 107 Ill.2d R. 383; Dornfeld v. Julian (1984), 104 Ill.2d 261, 84 Ill.Dec. 471, 472 N.E.2d 431; Crane Paper Stock Co. v. Chicago & Northwestern Ry. Co. (1976), 63 Ill.2d 61, 344 N.E.2d 461; Brokaw Hospital v. Circuit Court (1972), 52 Ill.2d 182, 287 N.E.2d 472.) We agree that the trial court erred in allowing the State's motion to nol-pros the charges without first ruling on the defendant's motion to dismiss on speedy-trial grounds, and we enter a supervisory order remanding the cause to the trial court for consideration of the defendant's speedy-trial motion.

The State's Attorney has the discretion to enter a nolle prosequi when, in his or her judgment, the prosecution should not continue. (People v. Byrnes (1975), 34 Ill.App.3d 983, 341 N.E.2d 729.) The State's Attorney's power to nol-pros, however, is subject to the discretion and approval of the trial court. (People ex rel. Hoyne v. Newcomer (1918), 284 Ill. 315, 120 N.E. 244; cf. People ex rel. Castle v. Daniels (1956), 8 Ill.2d 43, 47-48, 132 N.E.2d 507 (the Attorney General, however, has an absolute power to nol-pros unless the action is vexatious and repetitious, because the Attorney General's powers have their source in the common law, rather than in statute).) A court must allow the State's Attorney to enter a nolle prosequi unless it is persuaded that the prosecutor's action is capricious or vexatiously repetitious or that the entry of a nolle prosequi will prejudice the defendant. See People v. Rudi (1984), 103 Ill.2d 216, 222-23, 82 Ill.Dec. 936, 469 N.E.2d 580; People v. Davies (1985), 136 Ill.App.3d 212, 215, 91 Ill.Dec. 153, 483 N.E.2d 435.

The defendant had two motions pending when the trial court allow...