Appeal from the Circuit Court of Champaign County; the Hon.
BIRCH E. MORGAN, Judge, presiding. Reversed and remanded with
Defendant appeals his conviction following a jury trial upon an indictment for forgery. He was sentenced for a term of 8 to 14 years.
At issue is whether the failure to place the defendant on trial within 120 days from the date taken into custody, as required by chapter 38, section 103-5, Ill Rev Stats 1965, resulted from a delay "occasioned by the defendant."
Defendant was arrested on November 18, 1966, and was indicted on December 20, 1966, following a preliminary hearing. The record shows that the arraignment set for December 28, 1966, was not consummated. On February 23, 1967, the case was set for trial on March 13, 1967.
Much of the factual background was set out at length in our opinion in People v. Rice, 96 Ill. App.2d 253, 238 N.E.2d 266 (4th Dist 1968), wherein this court held that the trial court erred in finding one Bracy, a lawyer, in contempt of court, when he did not appear on the trial date, March 13, 1967. This court determined that the fact that Bracy, an attorney practicing in Chicago, had appeared for the defendant at a preliminary hearing and in a proceeding to reduce bail did not constitute him an attorney of record in the matter of the subsequent indictment of the defendant where Bracy had not entered his appearance at arraignment or otherwise. It was considered a significant factor that there had been no arraignment of the defendant as of that trial date.
The report of proceedings shows that on March 13, 1967, the case was called by the court without a jury. Bracy did not appear. Following a colloquy among the court, the State's Attorney and the defendant, there were one or more attempts to reach Bracy by telephone. Thereafter the court ordered a citation to issue against Bracy returnable March 16. During this time, the State's Attorney advised the court that on March 9, Bracy had stated that he was not an attorney representing defendant. The State's Attorney also suggested that the defendant be arraigned.
Bracy appeared on March 16 in response to the citation, and protested that he was not in contumacious contempt in that in his experience he would be attorney of record for defendant only following an appearance after the indictment of the defendant. The report of proceedings discloses that in a telephone call on March 14, Bracy advised the court that he was not an attorney for the defendant.
Despite the fact that Bracy was held in contempt for failure to appear, the report of proceedings shows that the court stated, "I take it your position still is that you are not attorney for Abe Rice." Thereafter the court granted Bracy's motion for leave to withdraw. The court thereupon appointed the public defender to represent the defendant. At this time defendant inquired of the court whether or not he was to be bound over to the grand jury, and was advised that an indictment had already been returned.
During this portion of the proceedings the State's Attorney advised the court that the statutory period of 120 days would expire on March 18. The court stated that the jury would not be available on March 17 and there is basis in the record for concluding that the jury had been excused from reporting until March 20.
On March 17, defendant appeared in court with the public defender and the State's Attorney. The record recites that he stated to the court that he did not want an attorney. When the court suggested appointing other counsel, defendant replied that he did not want any attorney. Thereupon defendant was furnished a copy of the indictment and a list of witnesses. He pleaded not guilty and stated to the court that he was ready to go to trial. The court vacated the appointment of the public defender and set the case for trial on Monday, March 20, which was the second day following the expiration date of the 120-day period.
On March 20 defendant appeared and made an oral motion for discharge under chapter 38, section 103-5, Ill Rev Stats 1965. The motion was denied. Defendant then asked to procure his own counsel and moved to vacate the trial date. On March 27 defendant advised that he had not obtained counsel and the court indicated that it would appoint counsel for the defendant. The court on this date made a finding of an understanding waiver of counsel and continued the case for trial on April 10. On the latter date the defendant requested appointment of counsel other than the public defender and the present counsel was appointed. The latter made a written motion for discharge pursuant to the statute. This motion was denied.
Prior to the trial, defendant renewed his motions for discharge and tendered evidence that he had been in jail since November 18, 1966, and that he had neither made a motion for continuance nor authorized one to be made in his behalf. The People v. Jones, 33 Ill.2d 357, 211 N.E.2d 261 (1965); People v. Terlikowski, 83 Ill. App.2d 307, 227 N.E.2d 521 (3d Dist 1967).
The essential argument of the State's Attorney upon the issue is that the delay was occasioned by the failure of "defendant's attorney" to appear on March 13. This assumption was found wanting in our opinion in People v. Rice, 96 Ill. App.2d 253, 238 N.E.2d 266 (4th Dist 1968). That opinion considered the statutes concerning the function of an arraignment in establishing the proper representation of a defendant.
While the State's Attorney argues that the notice of the arraignment for December 28, 1966, was ignored by the attorney, Bracy, such circumstance actually is a form of advice that Bracy was not serving as attorney of record. The fact that the State's Attorney mailed a notice of a trial date to an attorney who had not entered an appearance at an arraignment or otherwise following indictment is hardly a basis for charging a delay to the defendant. The record also shows ...