People v. Scholin

342 N.E.2d 388, 62 Ill. 2d 372, 1975 Ill. LEXIS 338

• Court: Illinois Supreme Court
• Decided: November 25, 1975
• Docket: 47052
• Status: Published

Opinions

MR. JUSTICE GOLDENHERSH

delivered the opinion of the court:

In a complaint and an information filed in the circuit court of Champaign County defendant, Richard J. Scholin, was charged with two offenses of theft, not from the person, and not exceeding $150 in value. (Ill. Rev. Stat. 1973, ch. 38, par. 16 — 1.) On August 15, 1973, the circuit court allowed defendant’s motion to dismiss both counts and in its order, inter alia, provided:

“*** said motion is by the Court allowed and Count I and Count II dismissed with leave to the State to file Amended Information within five (5) days, Defendant to continue on bond pending filing of Amended Information.

IT IS NOW ORDERED BY THE COURT that said cause be and the same is hereby allotted for arraignment on Amended Information August 20, 1973 at 9:30 o’clock A.M.”

On August 16, 1973, the People appealed. The appellate court, holding that the circuit court’s order was not final and appealable, dismissed the appeal (21 Ill. App. 3d 436) and we allowed the People’s petition for leave to appeal.

The People contend that the State’s Attorney was vested with the discretionary power to determine whether amended charges were to be filed and that the circuit court was without power to “mandate” the State’s Attorney to do so. The People argue that there is no statutory authority for the order entered by the circuit court, that the order was a final order, and that “there no longer was any charge pending against the defendant.” They argue further that the “substantive effect” of the order resulted in the dismissal of the charge and that under Rule 604(a) (Ill. Rev. Stat. 1973, ch. 110A, par. 604) it was appealable.

We do not agree. This record presents no attack on the discretionary powers of the State’s Attorney. The order granted leave to file amended charges and did not purport to require their filing.

We need not, and therefore do not, reach the question whether the circuit court was empowered to dismiss the information or complaint, grant leave to file amended charges, and hold the defendant to bail pending such filing. Clearly the circuit court did not intend to dismiss the charges or there would have been no reason to hold the defendant to bail or to set a time for arraignment. Under these circumstances the “substantive effect” of the order did not result in the dismissal of the charges within the contemplation of Rule 604(a). We hold, therefore, that an appeal did not lie from the order of the circuit court, and the judgment of the appellate court is affirmed.

Judgment affirmed.

MR. JUSTICE CREBS took no part in the consideration or decision of this case.