Petitioners present two problems not addressed directly by the statute or the Supreme Court in Jackson: (1) does the defendant have a right to dismissal of the indictment against him if it does not appear that he will be fit to stand trial in the foreseeable future, and (2) if a defendant is charged in Illinois with murder or a Class 1 felony, neither of which has a maximum statutory term of imprisonment prescribed, can he be held indefinitely, possibly for the duration of his life, while awaiting fitness for trial? • 3 As to the first question, we agree with the reasoning and conclusion of the court in People v. Byrnes (1975), 34 Ill. App.3d 983, 341 N.E.2d 729, that section 5-2-2 does not authorize a trial court to dismiss the charges against a defendant, found unfit to stand trial, who is charged with a Class 1 felony. By the same reasoning, neither does that section authorize dismissal when the charge is murder.
Inasmuch as it concerned the exercise of a court's powers prior to gaining jurisdiction, Levy is not applicable to the case at bar. The Department also urges our consideration of People v. Byrnes (1975), 34 Ill. App.3d 983. In Byrnes the appellate court found that the circuit court was without authority to dismiss criminal charges prior to trial.
The State's Attorney has the discretion to enter a nolle prosequi when, in his or her judgment, the prosecution should not continue. ( People v. Byrnes (1975), 34 Ill. App.3d 983.) The State's Attorney's power to nol-pros, however, is subject to the discretion and approval of the trial court.
Nevertheless, we quickly note that the trial court had subject matter jurisdiction of the forcible entry and detainer action because the circuit courts are courts of general jurisdiction. Ill. Const. 1970, art. VI, § 9; People v. Byrnes, 34 Ill. App. 3d 983, 96 (1975). Subject matter jurisdiction is a separate issue from whether Eccles provided proper notice in the particular forcible entry and detainer action.
Under article VI, section 9, of the 1970 Illinois Constitution (Ill. Const. 1970, art. VI, § 9), circuit courts are courts of general jurisdiction which may adjudicate any justiciable matter coming to them according to the course of common law, as well as any matter over which they are specifically given jurisdiction by statute. ( People v. Byrnes (1975), 34 Ill. App.3d 983, 986.) By enacting a statute which creates a right which has no counterpart in common law or equity, the legislature has created a "justiciable matter."
It has been held that the statutory authority of the State's Attorney to prosecute impliedly confers authority to nol-pros when, in his judgment, the prosecution should not continue. ( Creek v. Clark (1980), 91 Ill. App.3d 429, 435, 414 N.E.2d 816 rev'd on other grounds (1981), 88 Ill.2d 54, 429 N.E.2d 1199; People v. Byrnes (1975), 34 Ill. App.3d 983, 986, 341 N.E.2d 729.) Were courts given any broader discretion than what we have determined above, the result would tend to restrict the statutory authority reposed in the State's Attorney.
The first arbitration proceeding addressed the issue of defendant's liability to the estate; the declaratory judgment action does not seek to affect rights resulting therefrom but addresses only the procedural question of what effect that determination may have in Max Kemling's personal arbitration proceedings. See Lopin v. Cullerton (1977), 46 Ill. App.3d 378, 380, 361 N.E.2d 6, 8, appeal denied; People v. Byrnes (1975), 34 Ill. App.3d 983, 986, 341 N.E.2d 729, 730-31. Although Illinois reviewing courts have not heretofore addressed the primary question presented by this case, other jurisdictions have concluded that collateral estoppel does apply to an issue of fact actually contested and decided in an earlier arbitration, if that issue was properly before the arbitrators and the party against whom the estoppel is asserted had a full and fair opportunity to contest it at that time.
Ill. Rev. Stat. 1979, ch. 38, par. 114-1(a). See People v. Byrnes (1975), 34 Ill. App.3d 983, 986, 341 N.E.2d 729. Furthermore, the State's Attorney of Cook County is vested with discretion as to whether to initiate a prosecution and the management of criminal litigation.
The authority was well established at common law and remains today. ( People v. Byrnes (1975), 34 Ill. App.3d 983, 341 N.E.2d 729; People v. Wabash, St. Louis Pacific Ry. Co. (1882), 12 Ill. App. 263; Wilson v. County of Marshall (1930), 257 Ill. App. 220; People v. Mortenson (1922), 224 Ill. App. 221.) It has been held, and we agree, that the statutory authority of the State's attorney to prosecute (Ill.
The concept of its subject matter jurisdiction may be somewhat changed from that of a prior era. (See People v. Gilmore (1976), 63 Ill.2d 23, 344 N.E.2d 456.) However, in ruling in a direct attack on an order of a circuit court dismissing a criminal charge against a defendant because he was incompetent, the appellate court in People v. Byrnes (1975), 34 Ill. App.3d 983, 341 N.E.2d 729, spoke of the court as being without jurisdiction to enter the order of dismissal because of its lack of either a common law power or a statutory ground for doing so. Regardless of the extent to which a circuit court's subject matter jurisdiction is generally dependent upon following statutory procedures, we conclude that the court's jurisdiction to require restitution here was not dependent upon holding a presentence hearing although it may have been error to proceed without doing so.