a violation of article I, section 7 of the Illinois Constitution warrants outright reversal
How later courts described this case
- a violation of article I, section 7 of the Illinois Constitution warrants outright reversal
Written by the judges who cited it.
Later courts went against this
Declined to follow by People v. Roby, 200 Ill. App. 3d 1063 (1990)
Finally, we decline to follow People v. Kirkley (1978), 60 Ill. App. 3d 746, 377 N.E.2d 540, which was decided prior to the enactment of section 114 — 1(e), at a time when the legislature had not yet established any remedy for the violation of defendant’s right to a prompt preliminary hearing.
The opinion
Mr. PRESIDING JUSTICE STENGEL, specially concurring:
I concur in the result reached in this case, but something more needs to be said. This appeal presents squarely the question whether this court has authority to impose sanctions for a violation of a person’s constitutional right to a preliminary hearing. This case is undoubtedly the first Illinois decision where a court has applied the sanction of invalidating a conviction for failure to provide a prompt preliminary hearing.
While the general rule and custom in reversing judgments of conviction after a trial by jury is to remand the cause to the court below for further proceedings, we do possess power on reversal to discharge the prisoner absolutely if justice requires it. People v. Meyers, 397 Ill. 286 , 73 N.E.2d 288 ; People v. Rubin, 366 Ill. 195 , 7 N.E.2d 890 .
Numerous decisions by the appellate courts of Illinois have refused to grant a reversal of the judgment of conviction in like cases. In People v. Hunt (1st Dist. 1975), 26 Ill. App. 3d 776 , 326 N.E.2d 164 , the court held that a violation of the right to a preliminary hearing does not invalidate a defendant’s conviction or entitle him to a dismissal of the charges against him. It has also been held that if an indictment is dismissed because of a violation of the right to a preliminary hearing, prosecution on a new indictment is not barred. People v. Uribe (2d Dist. 1973), 13 Ill. App. 3d 1027 , 301 N.E.2d 492 , appeal allowed (1974), 55 Ill. 2d 603 , motion for summary affirmance allowed September 12, 1974.
The 176-day delay presented here is the longest recorded in Illinois history, and obviously violates the 1970 Illinois Constitution, article I, section 7. The supreme court first discussed the question of sanctions in People v. Hendrix (1973), 54 Ill. 2d 165 , 295 N.E.2d 724 . While holding that there was no violation of the right to a preliminary hearing, the court stated:
“The second paragraph of section 7 does not provide a grant of immunity from prosecution as a sanction for its violation.”
The last word in the fashioning of sanctions was considered in People v. Howell (1975), 60 Ill. 2d 117 , 324 N.E.2d 403 , and the supreme court has called upon the legislature to provide for such sanctions.
While the sanction adopted here may go beyond People v. Howell, the delay in giving an accused a prompt preliminary hearing is a serious deprivation of his constitutional right. If the legislature persists in its inaction, I believe that the matter of a proper sanction in the instant case is of sufficient significance that the supreme court of this State should resolve this problem at the earliest convenient opportunity.