                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Martinez, 2011 IL App (2d) 100498




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v.
Caption                    ESTEBAN MARTINEZ, Defendant-Appellee.



District & No.             Second District
                           Docket No. 2-10-0498


Filed                      October 5, 2011
Rehearing denied           November 8, 2011


Held                       In a prosecution for aggravated battery and mob action, the trial court’s
(Note: This syllabus       action in purporting to acquit defendant following a jury trial was an
constitutes no part of     appealable dismissal rather than a nonappealable acquittal where no
the opinion of the court   witnesses were sworn, the State presented no evidence, and jeopardy
but has been prepared      never attached; therefore, the appellate court had jurisdiction under
by the Reporter of         Supreme Court Rule 604(a)(1), and it agreed with the State that the trial
Decisions for the          court erred in denying the State’s motion for a continuance based on the
convenience of the         absence of material witnesses and the resulting prejudice to the State and
reader.)
                           the lack of great prejudice to defendant, and the cause was remanded for
                           the setting of a trial date.


Decision Under             Appeal from the Circuit Court of Kane County, No. 06-CF-1731; the
Review                     Hon. Timothy Q. Sheldon, Judge, presiding.



Judgment                   Reversed and remanded with directions.
Counsel on                 Joseph H. McMahon, State’s Attorney, of St. Charles (Lawrence M.
Appeal                     Bauer and Gregory L. Slovacek, both of State’s Attorneys Appellate
                           Prosecutor’s Office, of counsel), for the People.

                           Thomas A. Lilien and Darren E. Miller, both of State Appellate
                           Defender’s Office, of Elgin, for appellee.


Panel                      JUSTICE BIRKETT delivered the judgment of the court, with opinion
                           Justice Hudson concurred in the judgment and opinion.
                           Justice McLaren specially concurred, with opinion.




                                             OPINION

¶1          The State appeals from an order of the trial court, following a jury trial, purporting to
        acquit defendant of charges of aggravated battery (720 ILCS 5/12-4(a) (West 2004)) and mob
        action (720 ILCS 5/25-1(a)(1) (West 2004)). The State argues that the trial court abused its
        discretion in refusing to grant the State a continuance on the day of trial. Defendant not only
        disagrees but claims we lack jurisdiction over this appeal. For the reasons that follow, we
        find that we have jurisdiction, and we reverse the trial court’s judgment and remand this case
        for further proceedings.

¶2                                        BACKGROUND
¶3          We set forth in some detail a chronology of events below, as it is integral to the issues
        at hand. On July 7, 2006, the State filed a two-count complaint charging that defendant
        committed aggravated battery and mob action against Avery Binion and Demarco Scott. On
        August 9, the State filed an indictment alleging the same offenses against the same victims.
        On November 9, defendant was arraigned and bail was set at $30,000. On December 7,
        defendant filed a motion to reduce bail. The court granted the motion, and defendant posted
        bond. Also on December 7, the public defender was granted leave to withdraw and private
        counsel was appointed. By agreement, the court continued the case for a pretrial conference
        on December 21. On that date, defendant filed a motion for discovery. By agreement, the
        court continued the case to February 15, 2007, for “402/FPTC,” or final pretrial conference.
        The court’s order notes that defendant was admonished under “402,” or Illinois Supreme
        Court Rule 402 (eff. July 1, 1997), and that he consented to the continuance.
¶4          On January 29, 2007, defense counsel moved to withdraw. On February 15, the court
        granted counsel leave to withdraw and, by agreement, set the matter for status on April 12.
        On that date, the case was again continued by agreement to May 24 for status. On May 24,

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     the public defender was appointed and the case was again continued by agreement to June
     21 for status. The court’s order entered on June 21 notes that “402 [was] requested” and that
     defendant was admonished and consented. The case was continued by agreement to August
     2 for status. On August 2, defendant did not appear, and the court continued the matter, by
     agreement, to August 23 for status. On August 23, defendant again was absent. His bond was
     forfeited and an arrest warrant was issued. Defendant failed to appear at two further court
     dates in October and November 2007, and ultimately he was taken into custody on July 12,
     2008. Defendant posted bond again on July 16. On July 24, the case was continued to August
     28 on motion of defendant. On August 28, defendant was arraigned, the public defender was
     appointed, and the matter was continued by agreement to September 26 for status.
¶5        On September 8, 2008, defendant filed a speedy-trial demand and another discovery
     demand. Between September 26, 2008, and May 7, 2009, there were several further agreed
     continuances for status. The court’s order of May 7 stated that the “State elects on this case”
     and set the matter for final pretrial conference on July 31 and for trial on August 3. On May
     19, the State filed a discovery disclosure to the defense. On July 20, the State moved to
     continue the trial date of August 3 because one witness, a police detective, was unavailable
     until August 17 and because Binion and Scott “ha[d] not been located.” The State
     represented that all three witnesses were material. On July 24, the State issued subpoenas to
     Binion and Scott. An order entered on July 31, the date of the pretrial conference, showed
     that defendant did not appear in court. The order granted the State’s motion for a continuance
     and set the matter for August 3 for “appearance of defendant” and to “reset trial.” On August
     3, the court set the matter for pretrial conference on September 25 and for trial on September
     28.
¶6        On the pretrial date of September 25, 2009, the State filed another motion for a
     continuance based on its failure to locate Binion and Scott. Over defendant’s objection, the
     trial was rescheduled to November 9. On October 13, the State again issued subpoenas to
     Binion and Scott. On November 9, defendant was late to court, and, on the State’s motion,
     the court continued the trial to November 30. On November 25, defendant moved for a
     continuance because defense counsel had a scheduling conflict with the current trial date.
     The court rescheduled the trial to March 8, 2010. On December 15, 2009, well in advance
     of the trial date, the State moved for a continuance due to a scheduling conflict with one of
     its witnesses. Over defendant’s objection, the court postponed the trial to March 29, 2010.
¶7        On February 1, 2010, the State issued additional subpoenas to Binion and Scott to appear
     on March 29. On March 29, the trial court entered two orders. The first order granted the
     State’s “motion for a continuance” and set the matter for trial on May 17. There is no written
     motion in the record, and the grounds for this motion are not otherwise evident. The second
     order directed that rules to show cause issue against Binion and Scott, returnable on May 10.
     The record does not reflect what transpired on the return date of May 10. On April 14, the
     State issued a subpoena to Scott, to appear on May 17. (No subpoena for Binion appears in
     the record, but defendant does not dispute that a subpoena was issued.)
¶8        On May 17, the parties appeared before the court for the scheduled jury trial. When the
     case was called, this exchange immediately followed:


                                              -3-
              “MS. CREEKMUR [Assistant State’s Attorney]: *** At this time the State is not
          ready. We would be asking for a continuance even for just a few moments, or if we could
          have just a little bit longer to see if our witnesses [Binion and Scott] will be arriving.
          They are not here yet. I am hopeful that they will be here today.
              THE COURT: Well, here’s what I can do for you ***. I don’t wish to wait all
          morning long for these people to stroll in, but I will allow us to get started, but I won’t
          swear the panels until I have a whole jury. How is that?
              MS. CREEKMUR: Yes, your honor. If we could not swear them in, and before
          swearing them in if I could have a momentary recess.
              THE COURT: What I’ll do is we’ll pick a panel, send them back, pick the next panel,
          send them back, pick the last panel, send them back, pick your alternate or alternates,
          send them back. I’ll give you ten minutes, bring them out and swear them in or move to
          dismiss your case if you wish.
              MS. CREEKMUR: Thank you, your Honor.
              MS. WILLET [defense counsel]: Judge, I am objecting. I’m asking for a continuance.
          My client is not present yet. I certainly would ask for a short period of time if my
          continuance is not granted for him to be present before selecting the jury due to the
          prejudice that will occur even if he arrives late. That’s my request, Judge.
              THE COURT: Motion denied. As soon as the jury is up, we’re going to start.”
¶9        What follows in the report of proceedings is this notation: “WHEREUPON a jury was
     selected by the State and the Defense, which was reported but not transcribed herein.” When
     the transcription resumed, the court asked whether the State’s witnesses had arrived. The
     State replied that they had not and that the State was filing a written motion to continue the
     trial in order to arrange for the appearance of Binion and Scott. The written motion sought
     “an order continuing the Jury trial in the *** case” and stated that this relief would not
     “greatly prejudice” the defense but that the State would indeed be “greatly prejudiced” if the
     relief were denied. After the State announced that it had filed a written motion for a
     continuance, this colloquy followed:
              “MS. CREEKMUR: Your Honor, it is now 10:06 [a.m.] We have not seen [Binion
          or Scott], both witnesses. We are unable to proceed without them, and we would be
          asking for a continuance.
              THE COURT: Have you sent the police out to knock on their door?
              MS. CREEKMUR: I believe we’ve been checking on that and unable to locate them
          as of now. They also have cases that are up before your Honor this morning.
              THE COURT: Yes, they have. ***
              You have service on both these gentlemen?
              MS. CREEKMUR: Mr. Scott, I believe, was served some time ago. They both did
          appear last week in court, were given court orders to appear today.
              THE COURT: Okay. Anything further you would like to say on your motion to
          continue?


                                               -4-
           MS. CREEKMUR: No, your Honor.
           THE COURT: Defense?
           MS. WILLET: Judge, we certainly are objecting to any continuance, continuing in
       our demand for speedy trial.
           THE COURT: I will make these findings: The case before the Court began on July
       7, 2006. In two months we will then be embarking upon half a decade of pending a [sic]
       Class 3 felony. [Binion and Scott] are well known in Elgin, both are convicted felons.
       One would believe that the Elgin Police Department would know their whereabouts.
       They were ordered to be in court today. The Court will issue body writs for both of these
       gentlemen.
           In addition, the State’s list of witnesses indicates twelve witnesses. Excluding Mr.
       Scott and Mr. Binion, that’s ten witnesses. The Court would anticipate it would take
       every bit of today and most of tomorrow to get through ten witnesses. By then the People
       may have had a chance to execute the arrest warrant body writs for these two gentlemen.
           The Court will deny the motion for continuance. I will swear the jury in in 15, 20
       minutes. Perhaps you might want to send the police out to find these two gentlemen.”
¶ 10   The court then took a recess, following which was this exchange:
           “THE COURT: ***
           Shall I bring the jury in to swear them in or would a continuance to 1:30 [p.m.] be of
       any help?
           MS. CREEKMUR: I’m not sure if it would be helpful or not. Obviously, the State
       would like the continuance to see if we can get our witnesses here.
           THE COURT: My concern is this will be a further waste of time and that you’re not
       going to get any cooperation out of these two witnesses.
           MS. CREEKMUR: There [sic] whereabouts are unknown. We have had our officers
       look into it, and their whereabouts at this time are unknown. I do not know.
           THE COURT: Okay. So you don’t have any knowledge of where they are, so 1:00
       [p.m.] would be a further waste of time as far as getting this matter–
           MS. CREEKMUR: As far as the officers being able to locate them, yes. The officers
       are unable to locate them. However, if they appeared on their own between now–
           THE COURT: And they haven’t. It’s a quarter to eleven and they have not appeared
       on their own will, so I’m going to bring the jury in now and swear them.
           MS. CREEKMUR: Okay. Your Honor, may I approach briefly?
           THE COURT: Yes.
           MS. CREEKMUR: Your Honor, just so your Honor is aware, I know that it’s the
       process to bring them in and swear them in; however, the State will not be participating
       in the trial. I wanted to let you know that.
           THE COURT: Very well. We’ll see how that works.
           MS. CREEKMUR: Yes, your Honor.”


                                            -5-
¶ 11       The jury was then brought in, sworn, and given preliminary instructions. When invited
       to give its opening statements, the State said, “Your Honor, respectfully, the State is not
       participating in this case.” The defense was then invited to proceed, and it waived its opening
       statement. When invited to present its first witness, the State said, “Respectfully, your Honor,
       the State is not participating in this matter.” The court then took a recess for the defense to
       speak with the court. Following the recess, the defense moved for “directed findings of not
       guilty” on both counts, in view of the State’s failure to present any evidence. When invited
       to respond, the State again declined to participate in the proceeding. The court announced
       that it would “grant the motion for a directed finding and dismiss the charges.” The court’s
       written order stated: “[Defendant’s] motion for directed finding is granted as to all charges.
       Matter is dismissed.”
¶ 12       Two days later, on May 19, 2010, the State filed a certificate of impairment as well as a
       notice of appeal under Illinois Supreme Court Rule 604(a)(1) (eff. July 1, 2006).

¶ 13                                        ANALYSIS
¶ 14       The State argues that the trial court abused its discretion in refusing to grant the State a
       continuance to secure the appearance of its material witnesses, Binion and Scott. We agree,
       as explained below. First, however, we deal with a jurisdictional challenge.

¶ 15                                        I. JURISDICTION
¶ 16        Defendant questions whether Rule 604(a)(1), the provision under which the State filed
       its appeal, grants us jurisdiction here. The rule states that “[i]n criminal cases 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 of 1963 [(725 ILCS 5/114-1 (West 2004))].” Ill. S. Ct. R. 604(a)(1) (eff. July 1,
       2006). The question the parties put to us is not whether the trial court dismissed the charges
       for one of the grounds listed in section 114-1, but whether the court’s action was a dismissal
       at all. Defendant contends that the trial court’s action was rather an acquittal of the charges,
       from which the State cannot constitutionally appeal.
¶ 17        Article VI, section 6, of the Illinois Constitution (Ill. Const. 1970, art. VI, § 6) states that,
       “after a trial on the merits in a criminal case, there shall be no appeal from a judgment of
       acquittal.” If jeopardy has attached before the trial court’s judgment, there has been an
       acquittal, and not a dismissal, for purposes of both Rule 604(a)(1) and the Illinois
       Constitution, and the State may not appeal the judgment. People v. Murray, 306 Ill. App. 3d
       280, 281-82 (1999). Even where double jeopardy principles are not implicated, a judgment
       may be deemed an “acquittal” following “a trial on the merits” (Ill. Const. 1970, art. VI, § 6).
       See People v. Van Cleve, 89 Ill. 2d 298, 307 (1982). In Van Cleve, the supreme court held
       that a judgment notwithstanding the verdict in a criminal case is nonappealable under article
       VI, section 6. Id. The court found “no reason why a judgment entered by a trial court
       notwithstanding the verdict, which in effect is but a reconsideration of a motion for directed
       verdict, is other than a nonappealable judgment of acquittal.” Id. The court recognized that
       this construction of article VI, section 6, gave it greater scope than the double jeopardy

                                                    -6-
       clause. The court explained that the reversal on appeal of a directed verdict or acquittal
       would open the possibility of retrial and hence further exposure to criminal conviction. By
       contrast, the reversal of a judgment notwithstanding the verdict would simply reinstate a
       guilty verdict. Id. at 305-07. The court held that, though double jeopardy principles do not
       bar the appeal of a judgment notwithstanding the verdict, such an appeal is nonetheless
       prohibited under article VI, section 6. Id. at 307.
¶ 18        Defendant does not cite Van Cleve itself but does cite subsequent cases recognizing its
       holding. Significantly, though Van Cleve reads article VI, section 6, as affording broader
       protection than the double jeopardy clause, neither it nor any other decision cited by
       defendant suggests that “a trial on the merits” per article VI, section 6, may be deemed to
       have occurred prior to the attachment of jeopardy. (For instance, the holding in Van Cleve
       was not based on “a trial on the merits” having occurred before jeopardy attached; by any
       definition, the trial had concluded and jeopardy attached. In essence, the court’s holding was
       that a defendant’s successful attack on a verdict does not undo this “trial on the merits” even
       though the double jeopardy clause would not be implicated by a successful State appeal of
       the judgment.)
¶ 19        The State relies upon a set of cases, People v. Deems, 81 Ill. 2d 384 (1980), and its
       progeny. As we explain at length below, these decisions make no distinction between when
       jeopardy attaches and when there has been a “trial on the merits” per article VI, section 6.
       The touchstone for the Deems cases is whether the proceedings advanced to such a degree
       before the trial court’s “acquittal” that the defendant was placed at risk of conviction.
       Defendant does not dispute that these cases conflate the double jeopardy analysis with the
       analysis under article VI, section 6. Nor does he question the validity of this approach.
       Rather, he attempts to distinguish the cases on the facts, but he is unsuccessful, in our view.
       As we will show, defendant was at no greater risk here of being convicted than were the
       defendants in the Deems cases.
¶ 20        In Deems itself, the defendant was indicted for knowingly receiving stolen property. Id.
       at 386. On the date set for trial, the State conceded on the record that the defendant was not
       guilty of the charge. The State moved to dismiss the charge, indicating that it would indict
       the defendant for theft instead and would be ready for trial on the new charge within a week.
       Id. at 386-87. The defendant demanded an immediate trial on the current charge. The trial
       court, likening the State’s dismissal motion to a request for a continuance, decided that the
       defendant was entitled to an immediate trial on the current charge if he was prepared for it.
       Id. at 387. The State protested that the court would have the State try a person it believed was
       innocent of the charge. The court remarked that it would prefer to dismiss the case with
       prejudice but believed that it had no authority to do so under supreme court precedent. Id.
       The court then declared that it would call the case for trial and acquit the defendant. The
       defendant proceeded to waive his right to a jury trial. Id. Neither party made an opening
       statement. When the court called for witnesses, the State said that it had none. The defendant
       was sworn as a witness but did not testify. Id. The court found the defendant not guilty and
       entered a judgment of acquittal. The State subsequently filed an indictment for theft, but the
       court dismissed it on double jeopardy grounds. The State appealed, seeking reversal of both
       the acquittal and the dismissal. Id.

                                                 -7-
¶ 21       The supreme court held that jeopardy did not attach in the proceeding on the knowingly-
       receiving-stolen-property charge. Id. at 389-90. The court noted that a trial court’s use of the
       term “acquittal” to describe its judgment does not control the question of whether jeopardy
       attached:
           “While the judge denominated his action an ‘acquittal,’ it bore none of those
           characteristics except the label. *** The prosecutor was, in fact, doing his best to dismiss
           the charge against defendant on the ground that defendant was not guilty of the charged
           offense. Presumably the indictment would have been dismissed had defendant not
           persisted in demanding a trial. [Citation.]” Id. at 389.
       The court remarked that the proceeding was not in substance a trial:
               “The ‘trial’ held at the first proceeding was a sham, an artifice employed by the trial
           judge to achieve the result of a dismissal with prejudice for want of prosecution which
           *** he did not have the authority to order. Such a ‘trial’ might conceivably be
           appropriate in extraordinary circumstances [citations],[1] but it is not permissible when
           the prosecutor, well within the 120-day rule, seeks to dismiss, stating that the defendant
           is not guilty of the crime charged and declaring that the State intends to seek an
           indictment for a related offense which will be promptly tried.” Id.
¶ 22       Finally, the court recognized that “[t]he traditional rule is that jeopardy attaches in a
       bench trial when the first witness is sworn and the court begins to hear evidence.” Id. The
       rules that specify when jeopardy begins, however, “should not be applied mechanically when
       the interests they protect are not endangered and when their mechanical application would
       frustrate society’s interest in enforcing its criminal laws.” Id. at 388. The core interest of the
       double jeopardy bar is that “ ‘ “the State with all it resources and power should not be
       allowed to make repeated attempts to convict an individual for an alleged offense.” ’ ” Id.
       (quoting United States v. Scott, 437 U.S. 82, 87 (1978), quoting Green v. United States, 355
       U.S. 184, 187 (1957)). Where there has been no “ ‘risk of a determination of guilt,’ ”
       jeopardy has not truly attached. Id. at 390 (quoting Serfass v. United States, 420 U.S. 377,
       391 (1975)); see also People v. Aleman, 281 Ill. App. 3d 991, 1008 (1996) (jeopardy did not
       attach, because the defendant’s acquittal was procured through bribery of the trial judge,
       which meant that the defendant was never “subject to the risk normally associated with a
       criminal prosecution”). According to Deems, the traditional rule that double jeopardy
       attaches in a bench trial when the first witness is sworn and the court begins to hear evidence
       was “predicated upon the fact that the first witness is normally an individual whose testimony
       is part of the State’s case–a prosecution witness whose appearance is part of the
       incriminating presentation jeopardizing defendant.” Deems, 81 Ill. 2d at 390. In Deems,
       however, the only witness sworn was the defendant himself, and he did not testify. Since no
       other evidence was introduced, the defendant “was at no time during the[ ] proceedings in
       danger of being found guilty of any offense.” Id. Because jeopardy did not attach in the first
       proceeding, the court vacated the “acquittal” and reversed the dismissal of the second


               1
               The court did not elaborate on what constitutes “extraordinary circumstances,” and
       defendant does not argue that such existed here.

                                                  -8-
       indictment. Id. at 391.
¶ 23       In understanding the scope of Deems’ holding, it is first important to note that the State
       appealed not just from the dismissal of the theft indictment but also from the “acquittal” on
       the receiving-stolen-property charge. Hence, the Deems court was faced with two technically
       distinct questions: whether jeopardy attached in the former proceeding, and whether the
       court’s order in that proceeding was an appealable order of dismissal under Rule 604(a)(1).
       Significantly, the court conflated the analyses. Therefore, under Deems, the question of
       whether an “acquittal” by a trial court is tantamount to a dismissal of the State’s charges is
       equivalent to whether the court’s action occurred before jeopardy attached in the proceeding.
       Significantly, Deems noted that, in judging when jeopardy attaches, the rules of thumb
       developed by the courts must yield to the central concern of the double jeopardy clause,
       which is that the defendant must not twice be placed at “risk of a determination of guilt.”
       (Internal quotation marks omitted.) Id. at 390.
¶ 24       Deems’ approach was followed in People v. Edwards, 97 Ill. App. 3d 407, 408 (1981),
       where the State moved for a continuance on the day of trial, citing the unavailability of its
       key witnesses. The trial court denied the motion, purported to convene a bench trial, and
       invited the State to present its evidence. Id. The State replied that it had no evidence to
       present. Id. The court then asked defense counsel whether she wished to call the defendant
       as a witness. Id. at 409. Counsel called the defendant, who testified “as to her version of the
       circumstances and arrest.” Id. The court inquired of the State whether it wished to cross-
       examine the defendant, and the State stated that it was not participating in the proceeding.
       Id. The court then found the defendant not guilty. Id.
¶ 25       The State brought an appeal under Rule 604(a)(1), arguing that appellate jurisdiction lay
       because the trial court’s action was in substance a dismissal of the charge, though in form an
       acquittal. Id. at 408. The appellate court agreed, holding that jeopardy had not attached
       despite the fact that the defendant not only was sworn as a witness (as in Deems) but also
       gave testimony (unlike in Deems). Id. at 410-11. The court noted that the defendant’s
       testimony was voluntary and exculpatory and that the State declined to cross-examine her.
       Id. Consequently, the court found it “difficult to see how either in law or common sense [the
       defendant’s] election to testify in the absence of prosecution can have exposed her to
       jeopardy, single or double.” Id. at 411. The court elaborated:
           “This is not a case where a trial court evaluated the government’s evidence and
           determined that it was legally insufficient to sustain a conviction [citation], but one in
           which the government presented no evidence whatsoever upon which the trial court
           could have based any evaluation at all. In short, there simply was no trial. In our opinion,
           therefore, this situation is analogous to that in [Deems] ***.” Id. at 411-12.
¶ 26       People v. Verstat, 112 Ill. App. 3d 90 (1983), relied on both Deems and Edwards. Verstat
       consolidated 11 State appeals from judgments denominated “acquittals” by the trial court.
       Id. at 91. The appellate court, describing the relevant similarities among the cases, held that
       in each one the “acquittal” was in substance a dismissal:
                “The ‘trials’ conducted below were essentially the same in all 11 cases. Upon the trial
           court’s denial of the State’s motion for continuance which was requested in most of the


                                                 -9-
           cases, and its further denial of the State’s motion to nol-pros in all 11 cases, the court on
           its own initiative swore in the defendant, asked several preliminary questions, and found
           the defendant not guilty without further evidence. The State did not participate in any of
           the trials except as to the defendant Bibbs, wherein the prosecutor’s attempt to question
           Bibbs was disallowed on objection by defense counsel. We conclude that the ‘trials’
           below in all 11 cases were shams. Each was an artifice employed by the trial judge to
           achieve the result of a dismissal with prejudice for want of prosecution. [Citations.] As
           held in Edwards, the fact that a defendant testifies is not a sufficient distinction from the
           other similar circumstances in Deems to warrant a departure from the rationale of the
           court in Deems. There were no trials. The State did not attempt to convict the defendants
           and, therefore, the ‘acquittals’ amounted to dismissals which are appealable by the State
           pursuant to Supreme Court Rule 604(a)(1).” Id. at 96-97.
¶ 27       The court added: “While a double jeopardy argument is also advanced, we deem that
       contention under the facts here to have been sufficiently answered and rejected in both
       Deems and Edwards not to warrant further discussion herein.” Id. at 97.
¶ 28       The last of the Deems cases cited by the State is People v. Harris, 222 Ill. App. 3d 1089
       (1991). Harris consolidated three State appeals. In each of the cases, the State moved for a
       continuance on the day of trial, claiming the unavailability of material witnesses. Id. at 1091-
       92. The trial court denied the motion and said that the matter would proceed to trial. Id. at
       1092. Only one case was tried to a jury, and the State refused to participate in jury selection.
       Id. In each case, the State did not move to nol-pros the charges but stood on its motion to
       continue and presented no evidence. Id. at 1091-92. The defense also presented no evidence.
       Id. Judgments of acquittal were entered in all three cases. Id. at 1090.
¶ 29       The appellate court found the three cases materially indistinguishable from those in
       Verstat. Id. at 1096. The only difference the court identified was that the State in Verstat
       moved to nol-pros the charges. Id. However, the court noted that, in Edwards, the State also
       did not move to nol-pros the charges yet the appellate court presumably found this
       immaterial. Id. The Harris court likewise found it immaterial that the State did not move to
       nol-pros the charges in any of the cases. Id.
¶ 30       From these cases we draw the principle that, where there has been a purported “acquittal”
       in a criminal proceeding, the question of whether that “acquittal” followed a “trial on the
       merits” as understood in article VI, section 6, is equivalent to whether jeopardy attached
       before the “acquittal” was rendered. We recognize that Verstat first analyzed whether there
       had been a true “trial” in the case and then took up the question of whether jeopardy had
       attached. See Verstat, 112 Ill. App. 3d at 97. We do not, however, see this as authority to
       analyze the questions separately, for Verstat noted that its analysis of whether there had been
       a legitimate trial dispensed with the need for a double jeopardy analysis. Id. More
       importantly, the supreme court’s analysis in Deems–which controls over any of the appellate
       court cases–was from the outset a double jeopardy analysis, even though the court was faced
       with the technically distinct questions of whether there had been an appealable dismissal
       under Rule 604(a)(1) and whether jeopardy had attached. See Deems, 81 Ill. 2d at 387-88.
¶ 31       As for when and how jeopardy attaches, the Deems court stressed that cases are not to


                                                 -10-
       be mechanically decided by rules of thumb, e.g., that jeopardy in a bench trial attaches when
       the first witness is sworn and the court begins to hear evidence. Id. at 388-89. The court
       acknowledged that, in the bench “trial” in the case before it, a witness was sworn. As though
       anticipating the argument that, in some perhaps metaphysical sense, the trial court in Deems
       had begun to hear evidence in the case, the supreme court resorted to the core principle of
       the double jeopardy bar, i.e., that the defendant not be twice placed at risk of a determination
       of guilt on the same charge. The court noted that, since no evidence was produced in the
       case, there was no chance of a finding of guilt. Id. at 390. Edwards and Verstat instruct that
       jeopardy does not attach even when evidence is produced, if the evidence is not inculpatory.
¶ 32       Applying these guidelines as developed in Deems, Edwards, Verstat, and Harris, we hold
       that the “acquittal” entered by the trial court in this case was in fact a dismissal of the
       charges. Here, as in Deems, a rule of thumb of double jeopardy law is applicable, i.e., that
       “jeopardy attaches in a jury trial when the jury is empaneled and sworn.” People v. Bellmyer,
       199 Ill. 2d 529, 538 (2002); see also Crist v. Bretz, 437 U.S. 28, 35 (1978) (“The reason for
       holding that jeopardy attaches when the jury is empaneled and sworn lies in the need to
       protect the interest of an accused in retaining a chosen jury.”). Here, the jury was sworn and
       given preliminary instructions. As in Deems and Harris, however, no evidence was
       presented, and so there was no risk of a determination of guilt. Moreover, any risk of
       conviction that existed in some abstract sense was less than what was posed in Edwards and
       Verstat, where at least some evidence was received. Unlike in Deems, not even one witness
       was sworn in this case.
¶ 33       Though it is manifest that the essential concern of the courts in Deems and its progeny
       was whether the defendant was at risk of being found guilty, defendant trains his attention
       on the State’s conduct, particularly those elements he considers unsavory, and in so doing
       misses the mark. Defendant submits that it was wrong for the State to renege on its
       agreement to the trial court’s proposal that the jury be selected and then the State have a brief
       recess, before the jury was sworn, in which to decide whether to proceed with the
       prosecution or move to dismiss the charges. Defendant asserts that, by later moving for a
       postponement of the trial and refusing to participate in the proceedings past jury selection,
       the State “gamed the system” and wasted resources.
¶ 34       In focusing on the fairness of the State’s actions rather than on whether they actually
       placed him at risk of a criminal conviction, defendant apparently relies on certain remarks
       in Deems. In the course of its double jeopardy analysis, the Deems court commented on the
       subjective beliefs and aims of the trial court and the State. For instance, the court remarked
       that the “trial” in that case was “an artifice employed by the trial judge to achieve the result
       of a dismissal with prejudice for want of prosecution.” Deems, 81 Ill. 2d at 389. The court
       also noted that the State even admitted in open court that the defendant was not guilty of
       knowingly receiving stolen property. Id. at 390. As we read Deems, none of these
       observations was essential to the court’s holding. What matters are not the motives of the
       parties or the trial court, but whether, from an objective standpoint, the proceedings have so
       advanced that the defendant is placed at risk of a criminal conviction. We see not even a hint
       in Deems that revelations of the mind-set of the parties can override objective evidence of
       whether the defendant was at risk of a criminal conviction. Here, under Deems and

                                                 -11-
       subsequent cases, defendant was never at risk of a determination of guilt.
¶ 35        Besides focusing on the fairness of the State’s actions, defendant argues that the State
       showed a greater commitment to seeking a criminal conviction than did the prosecution in
       Deems and the other cases. First, defendant notes what actions the State took. He points out
       that, unlike the prosecution in Harris, the State here participated in jury selection. We see
       no indication in Harris, however, that the State’s refusal to participate in jury selection was
       a consideration in the court’s decision that the judgments in the consolidated cases were
       dismissals rather than acquittals. Rather, the only fact the court mentioned in support of its
       holding was the absence of any prosecution evidence in the cases. Harris, 222 Ill. App. 3d
       at 1096. Second, defendant notes what actions the State did not take. He observes that the
       State did not move to nol-pros the charges like the prosecution in Deems and Verstat. Like
       the court in Harris, where the State also did not move to nol-pros the charges, we consider
       this an inconsequential difference between this case and Deems and Verstat. Hence, whatever
       factual differences may exist between this case and the Deems line of cases, the reality upon
       which we base our decision is that nothing in the State’s action or inaction in this case placed
       defendant at risk of criminal conviction.
¶ 36        For the same reasons, we find inapposite here the principle, which defendant quotes from
       In re Detention of Swope, 213 Ill. 2d 210, 217 (2004), that “a party cannot complain of error
       which that party induced the court to make or to which that party consented.” The petitioner
       in Swope had been committed as a sexually dangerous person. Following his commitment,
       the trial court granted the petitioner’s request to have experts appointed to perform a
       reexamination of his status. Id. at 212. Counsel for the petitioner later informed the trial court
       that the petitioner’s treatment team had refused to speak with the appointed experts. Id.
       Counsel then requested a subpoena in order to depose a member of the treatment team. Id.
       at 213. The trial court granted the request, and the treatment provider was deposed. Id. Based
       on the appointed experts’ analysis of the information elicited during the deposition, counsel
       filed a petition for conditional release. Id. The trial court denied the petition, and the
       petitioner appealed, arguing that the inability of his appointed experts to interview the
       treatment team compromised his efforts in preparing his petition for conditional release and
       that the trial court denied him due process by countenancing the procedure. Id. at 214-15.
       The supreme court held that, because the petitioner’s counsel asked to depose the treatment
       team, he was barred from arguing that the deposition process was inadequate for preparing
       the petition for conditional release. Id. at 217. The petitioner could “not now attack a
       procedure to which he agreed, even though that acceptance may have been grudging.” Id.
¶ 37        Even if we were to agree that the State invited or acquiesced in the denial of its motion
       for a continuance, we would not consider the present action controlled by Swope. That case
       did not concern an appeal under Rule 604(a)(1) or raise a double jeopardy issue, and we see
       no indication that the supreme court in Swope intended the rule of invited error or
       acquiescence to apply in all contexts. Indeed, we see no room for that doctrine in the Deems
       analytical framework, under which jeopardy simply does not attach absent the objective
       possibility of a criminal conviction. Hence, the State’s conduct is relevant only as it created
       a risk of a determination of guilt.
¶ 38        As for the trial court’s purpose in acting as it did below, we acknowledge that Deems

                                                 -12-
       remarked that the trial court in that case convened a “sham” trial, i.e., a proceeding designed
       by the court not to adjudicate guilt or innocence based on the evidence, but to achieve what
       was in substance a dismissal with prejudice. See Deems, 81 Ill. 2d at 389. The Deems court’s
       ultimate holding, however, was based not on the trial court’s motives in convening the trial,
       but on the lack of any indication that the defendant was objectively at risk of a determination
       of guilt. Edwards, Verstat, and Harris identified the fulcrum of Deems’ analysis, their
       holdings turning on whether the State’s conduct created a risk of a conviction. Verstat did
       remark that the “trials” in those cases were artifices designed to achieve dismissals with
       prejudice, but, as in Edwards and Harris, the court’s ultimate basis for holding that the
       “acquittals” were so in name alone was that the State “did not attempt to convict the
       defendants.” Verstat, 112 Ill. App. 3d at 97.
¶ 39        In attempting to discern the place in Deems’ analysis for the court’s comment that the
       trial was a “sham,” we reject the possibility that Deems was suggesting that the specific
       principles as to when jeopardy attaches (in the case of a bench trial, when the first witness
       is sworn and the court begins to hear evidence) control unless the trial court subjectively
       intended to convene a trial as a pretext, in which case the broader principle applies, which
       dictates that jeopardy attaches when there is a risk of a determination of guilt. When its
       analysis is read in its entirety, it is clear that Deems does not require any inquiry into the trial
       court’s intentions. Even before remarking that the trial was a “sham,” the court had set the
       roadmap for its analysis, noting that the label “acquittal” was not dispositive for double
       jeopardy purposes and that the proceedings below “were not an attempt by the State to
       convict defendant.” Deems, 81 Ill. 2d at 389. We conclude that the court’s remark that the
       trial was a “sham” was an incidental comment and not part of the court’s holding, except
       insofar as it was the court’s alternative way of saying that the trial proceedings had not
       matured to the point that the defendant was at risk of a conviction. See Aleman, 281 Ill. App.
       3d at 1006 (defining “sham trial” as one that “results in an acquittal because the State does
       not submit evidence”). The reason that no trial can be said to have occurred below is not that
       the trial court did not really intend to have one, but that there objectively was none since the
       adversaries never joined. See People v. Tribbett, 90 Ill. App. 2d 296, 301 (1967) (“a trial is
       a contest held just once between well prepared adversaries of roughly equal strength”);
       Black’s Law Dictionary 1510 (7th ed. 1999) (defining “trial” as “[a] formal judicial
       examination of evidence and determination of legal claims in an adversary proceeding”).
¶ 40        Defendant also cites two other decisions, People v. Holman, 130 Ill. App. 3d 153 (1985),
       and People v. Vest, 397 Ill. App. 3d 289 (2009), which he claims are authority for holding
       that his trial had already started when the court entered the judgments of acquittal. We read
       neither case as mandating a different approach from that of Deems, and, of course, we could
       not follow them even if they did as the decisions of our supreme court control over those of
       the appellate court.
¶ 41        In Holman, at a bench trial, the State moved for a continuance after it finished the
       testimony of its first witness, the victim. Holman, 130 Ill. App. 3d at 154-55. The State
       represented that its two other witnesses, both police officers, were unavailable. Id. The court
       denied the motion, and the State produced no further witnesses. Id. at 155. The defense
       moved for a directed finding, which the trial court denied. Id. Following the defense’s case,

                                                  -13-
       the court entered an acquittal. Id. at 156. The State brought an appeal under Rule 604(a)(1),
       arguing that the trial court’s denial of the continuance was in substance a dismissal of the
       State’s case. Id.
¶ 42        The appellate court declined to interpret the trial court’s action as a dismissal. The court
       read Edwards as holding that Rule 604(a)(1) permits “the State to appeal from a pretrial
       order denying the State a continuance in a limited situation where the effect of the trial
       court’s ruling was to preclude the State from conducting a trial at all due to the unavailability
       of the State’s witnesses, thereby eliminating any possibility of convicting the defendant.” Id.
       at 157. The court found Edwards distinguishable because that case involved a “pretrial
       ruling.” Id. The court did so, however, without articulating any criteria for distinguishing a
       “pretrial” ruling from other rulings. The court then proceeded to acknowledge that Edwards
       utilized a double jeopardy analysis in interpreting whether Rule 604(a)(1) allowed the State’s
       appeal. Id. The court then determined that, under double jeopardy principles, which generally
       consider jeopardy as attaching in a bench trial when the first witness is sworn, jeopardy had
       already attached when the State’s motion was denied. Id.
¶ 43        We do not read Holman as embracing a standard, independent of double jeopardy
       principles, for determining whether a trial court’s action was an acquittal or a dismissal for
       purposes of Rule 604(a)(1) and article VI, section 6, of the Illinois Constitution. Holman did
       appear to render separate holdings that the trial court’s ruling was “pretrial” and that the
       ruling was made after jeopardy attached. This was appearance alone, for Holman relied on
       Edwards in holding that the ruling was not “pretrial,” and Edwards, following Deems,
       subsumed the Rule 604(a)(1) issue under a double jeopardy analysis. Holman, therefore, is
       in line with Deems.
¶ 44        Defendant claims that Vest held that “a trial begins when jury selection commences.”
       Vest did so hold, but in a relevantly different context than here. The issue in Vest was when
       a trial may be considered to begin for purposes of the rule that, if the defendant moves
       pretrial to dismiss an allegedly defective charging instrument, he need not show prejudice,
       but must show prejudice from the defective instrument if the motion is brought after the
       trial’s start. Vest, 397 Ill. App. 3d at 291. After considering various proposals for
       demarcating when a trial begins, the court settled on the rule that a trial starts when voir dire
       begins. Id. at 295. In evaluating the options, the court considered whether to simply adopt
       the standard for when jeopardy attaches, but concluded that these criteria were not apt for
       addressing the interests at hand:
            “Because *** the critical point for the attachment of jeopardy is the point at which a
            body has been constituted that has the power to convict the defendant, double-jeopardy
            cases are not reliable guides to what marks the start of trial.” (Emphasis in original.) Id.
            at 292.
¶ 45        Vest is inapposite. The case did not involve a State appeal, and there was no issue
       involving Rule 604(a)(1). Moreover, Vest drew a clear line between the interests protected
       by the double jeopardy bar and the interests implicated when a defendant moves to dismiss
       a charging instrument. Significantly, defendant cites Vest in passing and does not argue that
       Vest should control here because the interests at issue there are more analogous to those


                                                 -14-
       implicated by article VI, section 6, than to those implicated by the double jeopardy clause.
       That argument is, in any event, foreclosed by Deems, according to which the question of
       whether a trial court’s action was an acquittal or a dismissal is controlled by the double
       jeopardy principles that determine when jeopardy attaches in a proceeding. Even if, as we
       doubt, Vest may be read as conflicting with Deems, we must follow the decisions of our
       supreme court over those of the appellate court.
¶ 46       Deems and its progeny dictate here that, because no witnesses were sworn and the State
       presented no evidence, jeopardy never attached and, therefore, the trial court’s action was an
       appealable dismissal of the charges rather than a nonappealable acquittal. We conclude that
       we have jurisdiction under Rule 604(a)(1).

¶ 47                             II. MOTION FOR CONTINUANCE
¶ 48       Having determined that we have jurisdiction because the trial court’s action was an
       appealable dismissal under Rule 604(a)(1), we reach the State’s argument that the trial court
       erred in refusing to grant its motion for a continuance. Motions for continuances in criminal
       cases are governed by section 114-4 of the Code of Criminal Procedure of 1963 (Code) (725
       ILCS 5/114-4 (West 2004)). See People v. Sullivan, 234 Ill. App. 3d 328, 331 (1992).
       Subsection (e) of section 114-4 states in relevant part:
           “All motions for continuance are addressed to the discretion of the trial court and shall
           be considered in the light of the diligence shown on the part of the movant. Where 1 year
           has expired since the filing of an information or indictments, filed after January 1, 1980,
           if the court finds that the State has failed to use due diligence in bringing the case to trial,
           the court may, after a hearing had on the cause, on its own motion, dismiss the
           information or indictment. ***
                After a hearing has been held upon the issue of the State’s diligence and the court has
           found that the State has failed to use due diligence in pursuing the prosecution, the court
           may not dismiss the indictment or information without granting the State one more court
           date upon which to proceed. Such date shall be not less than 14 nor more than 30 days
           from the date of the court’s finding. If the State is not prepared to proceed upon that date,
           the court shall dismiss the indictment or information, as provided in this Section.” 725
           ILCS 5/114-4(e) (West 2004).
       The next paragraph, subsection (f), provides: “After trial has begun a reasonably brief
       continuance may be granted to either side in the interests of justice.” 725 ILCS 5/114-4(f)
       (West 2004).
¶ 49       The parties disagree over whether the State’s motion for a continuance was addressable
       under subsection (e) or instead subsection (f). The parties cite no case law on the interplay
       between these two subsections, and our own research has not uncovered any. Reading
       subsections (e) and (f) as complementary, defendant infers that, because subsection (f)
       expressly governs continuances requested “[a]fter trial has begun,” subsection (e) is limited
       to continuances sought before trial. Defendant further reasons that, because Vest instructs
       that a trial commences when voir dire begins, and because the State filed its continuance
       motion after jury selection, the State was not entitled to the “automatic continuance”

                                                  -15-
       mandated by the second paragraph of subsection (f) (see Harris, 222 Ill. App. 3d at 1096),
       according to which the trial court, even if it finds that the State failed to show due diligence,
       must allow the State “one more court date upon which to proceed,” which “shall be not less
       than 14 nor more than 30 days from the date of the court’s finding” on the State’s diligence
       (725 ILCS 5/114-4(e) (West 2004)). (There is no dispute that, under the first paragraph of
       subsection (e), the indictment was filed more than a year before the State filed the motion at
       issue.) Defendant concludes that, because the State filed its motion for a continuance after
       the jury was selected, the motion was governed by subsection (f) and, therefore, the State did
       not have the benefit of a “last chance” continuance but, in order to obtain any continuance,
       had to establish that it acted diligently and that a continuance would be in the interests of
       justice.
¶ 50        We interpret a statute according to the plain and ordinary meaning of its terms, but we
       will not accept a reading that produces an absurd result. People v. Williams, 239 Ill. 2d 119,
       127 (2010). Therefore, we cannot agree with defendant that subsections (e) and (f) are
       mutually exclusive. Defendant’s interpretation would have the absurd result that the State
       could avoid a trial court’s sua sponte dismissal, authorized by subsection (e), simply by
       waiting until after trial began to file its motion for a continuance, thus finding haven under
       subsection (f). The applicability of subsection (e) does not hinge on when the motion is filed,
       but is self-executing, coming into play simply where one year has expired since the filing of
       the information or indictment, filed after January 1, 1980. 725 ILCS 5/114-4(e) (West 2004).
       Of course, in this case, because of the time that had passed since the State filed the
       indictment, the merits of the State’s continuance motion were intertwined with the standard
       governing dismissals under subsection (e).
¶ 51        Though the application of subsection (e) does not depend on when a continuance motion,
       if any, is filed, it seems to follow from the structure of section 114-4 that a motion may be
       subject to both subsection (e) and subsection (f) if it is filed after the trial begins. In this case,
       however, subsection (f) did not apply. Subsection (f) provides for only a “reasonably brief
       continuance,” an appropriate limitation if the trial is in media res. Citing Vest, defendant
       argues that a jury trial begins for purposes of subsection (f) when jury selection commences.
       We assume, without deciding, that trial begins for purposes of subsection (f) when voir dire
       begins, and we conclude that the State did file its motion before voir dire. The State did not
       file its written motion until after voir dire, but the grounds for that motion, i.e., the absence
       of material witnesses, were the same as those presented in the State’s oral motion made
       earlier that morning when the case was called. We do not fault the State for waiting to
       prepare a written motion until after the case was called and it was confirmed that the
       witnesses still were not present. See People v. Peruscini, 188 Ill. App. 3d 803, 807 (1989)
       (failure to put continuance request in writing may be excused in extenuating circumstances).
       It appears the State prepared the written motion at the first opportunity.
¶ 52        Defendant also criticizes the State for moving for a postponement of the trial after
       previously agreeing that, following jury selection and a brief recess, it would either proceed
       to trial or dismiss the case. In fact, the defense also objected to proceeding to trial and
       requested a continuance because defendant had not yet arrived. See 725 ILCS 5/114-1 (West
       2004). The trial court abused its discretion in forcing the parties to trial when each had a

                                                   -16-
       sound statutory basis for a continuance. First, since the State did not attempt, under section
       115-4.1 of the Code (725 ILCS 5/115-4.1 (West 2004)), to establish grounds for trying
       defendant in absentia, it was error for the trial court to decide to proceed with jury selection
       (see People v. Ramirez, 214 Ill. 2d 176, 183 (2005) (section 115-4.1 “is part of a larger
       legislative scheme that allows a trial to proceed in the defendant’s absence while ensuring
       that the accused’s constitutional right to be present at trial and confront his accusers is not
       compromised in the process”)).
¶ 53        Second, the trial court further erred in denying the State’s later, written motion for a
       continuance. The grounds on which the State moved for a postponement should have been
       no surprise to the defense, which was on notice from the call of the case that material
       witnesses for the prosecution were absent and might continue to be absent. Because the
       State’s motion was not filed after the trial began, the motion was governed by the general
       standards in section 114-4 but not also by the particular standards in subsection (f) applying
       to motions made after trial has begun.
¶ 54        Turning to those general principles, we note that subsection (c)(2) permits the State to
       move for a continuance where “[a] material witness is unavailable and the prosecution will
       be prejudiced by the absence of his testimony.” 725 ILCS 5/114-4(c)(2) (West 2004). The
       State’s written motion represented that Binion and Scott both were material witnesses, that
       their absence would “greatly prejudice” the State’s case, and that a continuance would not
       “greatly prejudice” the defense. Defendant did not dispute these representations below and
       does not do so now. Subsection (e) states that “[a]ll motions for continuance are addressed
       to the discretion of the trial court and shall be considered in the light of the diligence shown
       on the part of the movant.” 725 ILCS 5/114-4(e) (West 2004). “It is well settled that the
       granting or denial of a continuance is a matter resting in the sound discretion of the trial
       court, and a reviewing court will not interfere with that decision absent a clear abuse of
       discretion.” People v. Walker, 232 Ill. 2d 113, 125 (2009). Factors to consider in whether to
       grant a continuance include the movant’s diligence, the defendant’s right to a speedy, fair,
       and impartial trial, and the interests of justice. Id.
¶ 55        In denying the State’s written motion for a continuance that was filed after jury selection,
       the trial court made the following findings:
                “The case before the Court began on July 7, 2006. In two months we will then be
            embarking upon half a decade of pending a [sic] Class 3 felony. [Binion and Scott] are
            well known in Elgin, both are convicted felons. One would believe that the Elgin Police
            Department would know their whereabouts. They were ordered to be in court today. The
            Court will issue body writs for both of these gentlemen.
                In addition, the State’s list of witnesses indicates twelve witnesses. Excluding Mr.
            Scott and Mr. Binion, that’s ten witnesses. The Court would anticipate it would take
            every bit of today and most of tomorrow to get through ten witnesses. By then the People
            may have had a chance to execute the arrest warrant body writs for these two gentlemen.”
       After a recess of 15 or 20 minutes, the court remarked that it believed it would be a “waste
       of time” to grant the State any additional time.
¶ 56        These findings did not justify the action taken by the trial court in forcing the matter to

                                                 -17-
       trial. The court noted that the case had been on its docket from July 2006 to May 2010. The
       State, however, did not file its first continuance motion until July 20, 2009–more than three
       years into the prosecution. The delay up to that point either was occasioned by defendant
       alone, was due to ongoing plea negotiations, or was due to reasons not apparent from the
       record. From November 9, 2006, to August 2, 2007, all continuances were by agreement and
       were due in part to defendant’s switching counsel and to plea conferences under Rule 402,
       which took place both before and after defendant switched attorneys. From August 2, 2007,
       to July 2008, defendant did not appear in court, and he was ultimately arrested.2 Between
       July and September 2008, defendant was arraigned again, posted bond, and was appointed
       counsel. On September 8, 2008, defendant filed his demand for a speedy trial. Between
       September 8, 2008, and May 7, 2009, there were six agreed continuances, the grounds for
       which are not indicated in the record. On May 7, 2009, after the State made its election to
       proceed on the case, the trial court set a trial date (August 3, 2009) for the first time in the
       case. The four continuances that the State requested between July 20, 2009, and May 17,
       2010 (the date the “acquittal” was entered), caused roughly 20 weeks of delay. To place it
       in better perspective, the State caused 5 months of the total 46 months of delay in the case.
       The larger part of that five months of delay was requested due to the State’s failure to locate
       the victims, Binion and Scott. The State did not fail to attempt to secure their appearance, but
       subpoenaed them for all trial dates. (A subpoena to Binion for the May 17, 2010, trial date
       does not appear in the record, but there is no dispute that the subpoena was issued.) Cf.
       People v. Boland, 205 Ill. App. 3d 1009, 1014 (1990) (“Failure to subpoena a witness
       suggests a lack of diligence, unless counsel has a reasonable expectation that the witness will
       appear without a subpoena and the witness is delayed by last-minute events.”). The State, we
       conclude, showed proper diligence.
¶ 57        As for defendant’s interest in a speedy trial, we note that he caused twice as much delay
       by his failure to appear as the State caused in trying to locate Binion and Scott. Also,
       defendant did not file his speedy-trial demand until September 8, 2008–more than two years
       into the prosecution. Defendant quotes from Murray that, “[e]ven when there has been no
       acquittal[,] an accused has some right to have his trial concluded before the first jury that is
       impanelled” (Murray, 306 Ill. App. 3d at 283). In actuality, this is a principle that guides
       when jeopardy attaches, and that is not the issue here. To the extent the principle may state
       a general interest of a criminal defendant, it carries little force here since, in view of the
       months of delay he himself caused, defendant can hardly be heard to complain that a further
       postponement for the securing of material witnesses was unacceptable.
¶ 58        As for the trial court’s proposal that the State open the trial with other witnesses while
       waiting for Binion and Scott, the scheduling of witnesses and the order in which they are
       called are up to the parties, not the court. While the court’s proposal was not unreasonable,


               2
                In his appellate brief, defendant does not even acknowledge his prolonged absence from
       the proceedings. His insinuation that the delay before trial was largely the State’s fault is not well
       taken. (We note particularly this statement in the fact section of defendant’s brief: “By September
       8, 2008, the defendant had still not been tried.”) We expect greater candor from litigants in this
       court.

                                                   -18-
       it was the State’s decision whether to accept or reject it. The court “was without authority to
       assume the mantle of prosecutor” and dictate, over the State’s objection, that trial commence
       in the absence of witnesses the State deemed crucial. Edwards, 97 Ill. App. 3d at 412 (trial
       court erred in denying continuance motion premised on absence of arresting officers); cf.
       People ex rel. Daley v. Moran, 94 Ill. 2d 41, 46 (1983) (“A trial judge cannot, consistent with
       the constitutional principle of separation of powers, assume the role of prosecutor and
       determine which criminal offense shall be charged and thereafter proceed with disposition
       of that offense over the State’s objection ***.”). It was for the prosecution to decide whether
       it should proceed with the other witnesses and thus run the risk that jeopardy would attach
       without Binion and Scott ever appearing. In view of the State’s diligence and defendant’s
       hindering of the proceedings, the interests of justice would have been far better served by
       continuing the matter while the authorities sought to compel Binion’s and Scott’s presence
       by force.
¶ 59        We stress that we do not condone the State’s agreeing to participate in jury selection in
       the first place. Given the unlikelihood that Binion and Scott would appear voluntarily, the
       State should have moved for a continuance and refused altogether to participate in the trial.
¶ 60        The last point we wish to stress is that, though we hold that the State was entitled to a
       continuance by its showing of due diligence, even failing that showing the State would have
       been entitled to “one more court date upon which to proceed,” which had to be “not less than
       14 nor more than 30 days from the date of the court’s finding” that the State did not show
       due diligence. 725 ILCS 5/114-4(e) (West 2004). The trial court evidently did not consider
       this provision. Of course, where, as here, the State shows due diligence, the trial court is not
       limited under the statute to the 30-day maximum for a continuance.
¶ 61        We are mindful of defendant’s statutory speedy-trial right, though the parties did not
       mention that right until oral argument and seemed to agree that approximately 10 days
       remained in the speedy-trial term. (We have not calculated the balance for ourselves.) If
       indeed the expiration of the term was imminent, the State still had means to seek, and the
       trial court to grant, a continuance. The State had proven its entitlement to both a “due
       diligence” continuance and a “last chance” continuance under section 114-4(e), either of
       which the trial court had authority to grant within the speedy-trial time. See Verstat, 112 Ill.
       App. 3d at 98 ( “a trial court should deny continuances sought by the State [under section
       114-4] where a defendant’s right to a speedy trial *** will be improperly obstructed”). We
       stress that, under the “last chance” provision of section 114-4(e), the trial court would not
       have been constrained to grant the minimum 14-day postponement if that would have taken
       the trial beyond the speedy-trial term. Rather, the court would have been constrained not to.
       See id.; People v. Macklin, 7 Ill. App. 3d 713, 716 (1972) (“both the People and the Courts
       have the obligation to afford a defendant his statutory rights, as well as give him a speedy
       trial”). The court could have granted a “last chance” postponement of less than 14 days if
       needed to honor defendant’s speedy-trial right. In this way the court would have served the
       overarching purpose of section 114-4, which is to ensure that “criminal cases are tried with
       due diligence consonant with the rights of the defendant and the State to a speedy, fair and
       impartial trial” (emphasis added) (725 ILCS 5/114-4(h) (West 2004)). The State also had
       recourse to section 103-5(c) of the Code (725 ILCS 5/103-5(c) (West 2004)), the Speedy

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       Trial Act, which permitted the State, upon a showing of due diligence, to obtain up to a 60-
       day continuance to procure “material” evidence, during which period the speedy-trial term
       would have been tolled.
¶ 62       For the foregoing reasons, we reverse the judgment of the circuit court and remand this
       case for the setting of a trial date with all due regard for the State’s as well as defendant’s
       interests.

¶ 63       Reversed and remanded with directions.

¶ 64        JUSTICE McLAREN, specially concurring:
¶ 65        I specially concur because I wish to distance myself from some of the analysis regarding
       the court’s denial of the State’s motion for a continuance. I concur generally because I
       believe that the court was wrong to find that a continuance would be a waste of time; I do not
       believe that this underlying finding is supported by the evidence. The court’s finding is
       against the manifest weight of the evidence, and that affects the ultimate exercise of
       discretion. See People ex rel. Sussen v. Keller, 382 Ill. App. 3d 872, 878 (2008) (the court
       “will review the trial court’s factual findings under the manifest-weight-of-the-evidence
       standard, but we review the court’s ultimate determination for an abuse of discretion”).
       Moreover, the court should have made the State pick a date certain for the continuance of the
       trial. Failing to do so essentially placed the exercise of discretion in a vacuum. The failure
       of the court to require the State to pick a date essentially resulted in no exercise of discretion.
       As such, the denial should be vacated, rather than reversed, so that the court may reconsider
       the State’s motion in the context of a real future date, and its decision can be reviewed based
       upon the totality of the circumstances.
¶ 66        Unfortunately, there are aspects of the majority analysis that attempt to make the trial
       court’s “exercise” of discretion worse than it was. The record indicates that the State made
       an oral motion for a continuance that was denied before the start of the trial. The State then
       presented a written motion after the start of the trial, which would make section 114-4(f) of
       the Code pertinent. I believe that the trial court, under the particular circumstances of this
       case, was attempting to accommodate the parties. If necessary witnesses were not available
       after all the other evidence had been presented by the State, then a motion for a continuance
       under section 114-4(f) would have been in the interest of justice, as the speedy-trial term
       would have expired in the very near future. The State’s action of requesting a continuance
       without designating a future date certain suggests that the State was more concerned with
       double jeopardy than with the speedy-trial term running. I submit that the trial court was
       dealing with the State’s location between a rock and a hard place more reasonably than was
       the State. The trial court was attempting to accommodate the State, but the State was unsure
       when it would locate and secure the witnesses. That is apparent from the fact that the motion
       for a continuance did not contain a date certain for the trial. It is difficult to conclude, as the
       majority does, that the State “was entitled to a continuance” when the State’s prayer for relief
       was incomplete. This is especially true when less than two weeks remained in the speedy-
       trial term. The trial court was put in the position of weighing undefined factors that the

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       majority disregards but determines the trial court improperly considered. Without a date
       certain, there is no benchmark to measure against if the court denies, grants, or partially
       grants the relief that was vaguely requested. If anything, this is a procedural default
       committed by the State that should not go unrecognized.
¶ 67        The majority analysis covers matters that I do not believe should be included in the
       disposition. The discussion in paragraphs 60 and 61 regarding the possible right to alternative
       continuances is inappropriate under the facts as speculative and a prejudgment of matters in
       futuro. Without a date or a rationale given by the State, the majority has taken upon itself to
       prejudge what has not yet occurred, let alone been raised by the State. The majority states
       that the “court evidently did not consider” the provision of section 114-4(e) of the Code
       entitling the State to “one more court date upon which to proceed.” (Internal quotation marks
       omitted.) Supra at ¶ 60. I submit that the consideration of a “provision” not argued or raised
       by the State is not error but judicial restraint. If the majority wishes to educate the State as
       to how it should prosecute its cases, it should choose a more appropriate forum than this
       disposition. Why the majority is suggesting that the State could win a battle and lose a war
       under this provision should be noted as Pyrrhic dicta. If the trial court had considered and
       granted such a continuance, it would have been interesting to see what the State’s response
       would have been after the court subsequently dismissed the case due to a speedy-trial
       violation. If the trial court had considered and denied such a continuance, the resolution
       would have established the innocuousness of the majority’s comment. The alternative relief
       proposed by the majority for a continuance beyond the speedy-trial deadline was not
       broached by the State, and the pre-adjudication of such a hypothetical request is
       inappropriate. Judicial economy encompasses neither telling the State how to best prosecute
       its case nor what the trial court should do relative to an exercise of discretion. The majority
       apparently thinks that the trial court must grant whatever relief is sought. There is no citation
       to authority that indicates that the State would be entitled to a continuance to a date when the
       judge is unavailable or any other matter that could affect any relief sought by the State. If the
       majority believes that there is still some discretion to be exercised by the trial court in
       scheduling the trial, it is not evident in its disposition.
¶ 68        Rather than determining that the trial court abused its discretion, I would determine that
       the particular facts and circumstances were inappropriate for a meaningful exercise of
       discretion by the trial court. I would vacate and remand the cause for further proceedings. See
       In re Application of the County Collector, 343 Ill. App. 3d 363, 371 (2003) (the lack of
       specificity precluded the court from considering the totality of the circumstances and thus
       the exercise of discretion was improper).




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