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People v. Fosdick

MARCH 22, 1966.




Appeal from the Circuit Court of Champaign County; the Hon. BIRCH E. MORGAN and ROGER H. LITTLE, Judges, presiding. Judgment reversed.


The defendant was convicted of rape in a bench trial in the circuit court of Champaign County. A sentence of not less than six nor more than twenty years was imposed, the sentence to run concurrently with another sentence imposed in De Witt County, Illinois. This appeal presents no question as to guilt or innocence but only the question of whether the trial court erred in denying a motion to dismiss and for discharge, alleging the denial of the constitutional right to a speedy trial and violation of the provisions of § 103-5 of c 38, Ill Rev Stats 1963.

A determination of the issue presented necessitates a recitation, chronologically, of the events relating to custody and trial. The offense here charged was on December 20, 1963. On January 7, 1964, a criminal complaint charging the offense was filed in the circuit court of Champaign County. At or about that time the defendant was in the custody of De Witt County, Illinois, authorities on other charges. On February 16, 1964, the defendant escaped from the De Witt County authorities.

On March 11, 1964, the defendant was apprehended in Champaign County and lodged in the Champaign County jail. On the following day he was taken before a magistrate in Champaign County and a copy of the complaint was given to the defendant, and the public defender appointed to represent him.

On the next day, March 13, 1964, the January 7, 1964, complaint was dismissed and on that same day another complaint was filed alleging the same charge based upon the same conduct. Another warrant was issued that day but not served on the defendant. The defendant was taken to De Witt County on March 13, 1964, and there tried and convicted of other charges, sentenced to the Illinois State Penitentiary, and on April 21, 1964, incarcerated in the Illinois State Penitentiary. The record does not establish the specific chronology of events of March 13, 1964.

A "few days" after the defendant was surrendered to De Witt County authorities, a detainer or hold order was placed with De Witt County authorities, and the record establishes that this detainer or hold order followed the defendant to the penitentiary.

On April 7, 1964, the defendant was indicted by the grand jury of Champaign County on the same offense as the one charged on January 7 and dismissed and refiled on March 13, both in 1964. On June 22, 1964, the defendant was returned to Champaign County pursuant to a writ of habeas corpus ad prosequendum, arraigned and the cause set for jury trial for the week commencing July 6, 1964. The public defender was again appointed to represent the defendant.

The case was not tried during the week of July 6, 1964. Affidavits by counsel vary as to the understanding of the reason for the case not being tried. In any event, on July 9, 1964, the record shows that the defendant appeared in court with the public defender, waived trial by jury, and a jury waiver was signed and filed. On that day, on motion by the state's attorney, the case was set as a non-jury matter for July 15, 1964.

On July 14, 1964, a motion to dismiss was filed alleging the constitutional and statutory grounds above set forth. This motion was denied and the case was ultimately tried on October 14, 1964.

Section 103-5(a) of c 38, Ill Rev Stats 1963, provides:

"Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant, by a competency hearing, or by an interlocutory appeal."

The Committee Comments contained in the annotated volume relating to this section succinctly state the history of this provision and its function of implementing the constitutional right of an accused to a speedy trial. It is there stated:

"Except for some revision in the language used, and the separation of the various elements of the right into separate subsections, this section codifies Ill Rev Stats 1961, ch 38, . . . [sec] 748, and the Illinois decisions construing it. While Article II, Section 9 of the Illinois Constitution guarantees the accused a speedy trial, it specifies no time. The four-months period provided in old section 748 and continued in this section as 120 days merely goes to the method of enforcing the constitutional right. (People v. Morris, 3 Ill.2d 437, 121 N.E.2d 810 (1954).)". . .

Here the defendant was originally in custody on January 7, 1964. We agree with the contention of the State that his escape and status as a fugitive preclude the defendant from invoking the aid either of the statute or the constitution for the time that he was in the status of a fugitive. Thus, the statute ...

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