dissenting:
I readily agree with the conclusion of the majority that for 30 days after entry of the final judgment the court retained jurisdiction of the case and that the judgment was not “executed” when defendant was discharged and his bond deposit refunded. However, I disagree with the conclusion that the trial court, although retaining jurisdiction, could not set aside the order of discharge within the 30 day period and I accordingly respectfully dissent.
The majority apparently sees a conflict of two well-established legal principles and resolves the assumed dilemma by an overriding process whereby one rule is given precedence over the other. I see no conflict of principles and no need for an override; both principles should remain commensurate and without conflict.
Involved are, on the one hand, the ancient common-law rule that a court retains jurisdiction of its judgments and orders for 30 days after entry with the authority to set aside or amend as the justice of the case may require. On the other hand is the equally well established rule that if an accused is not brought to trial within 120 days from the date he was taken into custody, he must be discharged. This rule is established by a statute (Ill. Rev. Stat. 1973, ch. 38, par. 103 — 5) which is an implementation of the constitutional guarantee of a speedy trial.
. In finding a precedence for the 120-day rule the majority places emphasis upon the fact that an order dismissing a charge on speedy trial grounds is an appealable order. They have stated:
“After a hearing on the merits of defendant’s motion, during which the State had been present, the trial court entered an appealable order of discharge. The State chose not to appeal from that order but instead chose to readjudicate those same questions previously decided by the trial court. This was clearly error.”
It is with this assumption that I believe the majority has erred.
It is of no consequence that the order which was set aside by the trial court in the exercise of its powers under the 30-day rule was a final and appealable order or judgment. Section 50(5) of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 50(5)) expressly authorizes the trial court to set aside any final order or judgment upon any terms and conditions that shall be reasonable. The terms of section 50(5) of the Civil Practice Act have been held applicable to criminal cases (People v. Green, 34 Ill. App. 3d 153, 340 N.E.2d 58), but quite aside from the Civil Practice Act provision it has long been held in criminal cases that a final and appealable order or judgment in a criminal case can be amended under the 30-day rule. In People v. Lance, 25 Ill. 2d 455, 185 N.E.2d 221, the trial court did the same thing as the court whose order we now review, dismissed the indictment and later, but within 30 days, set the order of dismissal aside and proceeded with the prosecution. The supreme court upheld the action by reference to the “settled power of a common-law court over its judgments within term time.” The court stated:
“The duration of that power is today measured by a period of thirty days from the entry of the judgment, rather than by the expiration of a term of court, but the authority of the court during that period is the same as the historic common-law power of the court over its judgments during term time.” (25 Ill. 2d 455, 456, 185 N.E.2d 221, 222.)
A large number of cases which stand for the same proposition are cited in People v. Green and need not be repeated here. In some cases, e.g., People v. Gulley, 411 Ill. 228, 102 N.E.2d 650, the initial sentence was set aside within the 30-day period and a greater sentence subsequently imposed. The Gulley case makes it plain that the court has jurisdiction to do such under the 30-day rule.
As the majority states in this case, there was a readjudication of the order of discharge by the trial court and both questions of law and of fact were involved. That “readjudication” consisted of considering further evidence regarding which of the parties, the State or the defendant, had been responsible for delay of the trial beyond 120 days. However, such reconsideration by the court is well within the court’s powers. It may set aside its orders or judgments within the 30 days and upon such being done it is the same as though those orders or judgments were never entered in the first instance — they simply become a nullity. People v. Gulley.
It should also be pointed out that the “readjudication” that occurred here was not upon the charge contained in the indictment and did not concern the merits of the case so as to invoke the doctrine of double jeopardy. The original order of discharge in this case was not an acquittal because defendant was never tried on the charge contained in the indictment. Under Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 2 — 1) “acquittal” means a verdict or finding of not guilty of an offense, rendered by a legally constituted jury or by a court of competent jurisdiction authorized to try the case without a jury. “The concept of ‘jeopardy’ as incorporated in the applicable statute, section 3 — 4(a) of the Criminal Code, and the Federal and State constitutions, requires that the accused be on trial for the offense charged; that is, that he be present at a judicial proceeding aimed at reaching a final determination of his guilt or innocence of the offense charged.” (People v. Chatman, 38 Ill. 2d 265, 270, 230 N.E.2d 879, 882.) Jeopardy attaches only when a trial is begun on the indictment. People v. Santa, 36 Ill. App. 3d 289, 343 N.E.2d 512.
When the original order of discharge for violation of the 120-day rule was set aside it became a nullity. In effect, it had never been determined by the court that the defendant had been denied a speedy trial in contravention of section 103 — 5 of the Code of Criminal Procedure of 1963. (Ill. Rev. Stat. 1973, ch. 38, par. 103 — 5.) The court was acting with full jurisdiction and authority which it had under the “historic common-law power of the court over its judgments during term time.” While the original order of discharge was appealable (People v. Quintana, 36 Ill. 2d 369, 223 N.E.2d 161; Supreme Court Rule 604 (Ill. Rev. Stat. 1973, ch. 110A, par. 604)), the State was not compelled to appeal, but chose instead to present additional factual material to the trial court by way of its motion to set aside the order of discharge filed within the 30 days. The action of the court in setting the order aside cannot be termed unreasonable. The rule cited by the majority (that after discharge for lack of speedy trial per section 103 — 5 of the Code of Criminal Procedure a defendant is immune from prosecution for the same offense) is in no way infringed. My critical difference with the majority view is that defendant has not been discharged until the order has become final and the court has lost jurisdiction, that is, after 30 days has expired following entry of the order, or a notice of appeal has been filed.
People v. Quintana relied upon by the majority is not in point for it in no way concerned the jurisdiction of a court to set aside its orders and judgments within 30 days. The crux of that opinion held that: “It is, of course, established law that once a defendant has been discharged because not accorded a speedy trial, he cannot be indicted anew for the same offense. [Citations.]” (36 Ill. 2d 369, 371.) Neither is People ex rel. MacMillian v. Napoli apt for the same reason. It was related to an order suppressing evidence. Both Quintana and Napoli held that the orders in question were final and appealable orders. Such fact has no bearing on the case under consideration since, after being set aside under the 30-day rule, there was no order that could be appealed.
The basis of the majority’s distinction of People v. Santa is not sustained by the case. They stated that the State appealed the trial court’s discharge order and therefore the court on appeal did not consider the issue here presented. The statement is only half true for, as the opinion in Santa states: “This is an appeal by the State both from the allowance of defendant’s motion for discharge and from the denial of the State’s motion to vacate.” (36 Ill. App. 3d 289, 293.) Thus, the Santa court did consider the precise question we have here and reached the opposite, and what I consider to be the correct, result.
I would affirm the trial court.