Appeal from the Circuit Court of DuPage County, Eighteenth
Judicial Circuit; the Hon. L.L. RECHENMACHER, Judge, presiding.
Reversed and remanded.
MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT.
The People have appealed from an order discharging defendant, Joseph Mikrut, from custody pursuant to a motion by defendant charging denial of a speedy trial under the provisions of Ill Rev Stats 1967, c 38, § 103-5.
On October 25, 1968, defendant was arrested in Cook County on charges of possession of burglary tools and driving with license suspended, and held in the Cook County jail. On or about the same date, the Elmhurst (DuPage County) police department placed a complaint and warrant specifying bond at $10,000, with the Cook County jail, charging defendant with burglary in Du Page County. The complaint and warrant were not served upon defendant. He was told, however, on October 29th, by Cook County authorities that they had a "hold" on him from DuPage County.
Bond on the Cook County charges was eventually reduced to $1,000 but defendant did not make bond.
On November 11th or 12th defendant appeared before the court on the Cook County charges and, represented by the public defender, agreed to a continuance until February 11th, 1969.
Defendant was brought before the court in DuPage County for the first time on January 10th, 1969, when he was served with an indictment returned by the Du Page County Grand Jury on December 19th, 1968. He was arraigned on the DuPage County charges on January 17th, 1969, and, after appointment of the public defender, the matter was set for motions and for trial setting on February 3rd, 1969. On that date the matter was set for trial on March 3rd, at which time defendant raised the 120-day rule regarding the DuPage County charge.
The provisions of section 103-5(a), supra, as material here, are:
"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. . . ."
The issue raised by the appeal is whether the 120-day rule began to run on the date the DuPage burglary complaint and warrant was placed with Cook County but was not served on defendant, who was being held on a separate Cook County charge; or whether said rule instead began to run on the date defendant was first brought to DuPage County and served with the DuPage indictment. Defendant takes the position that the 120 days begin to run from the time he was in custody anywhere in the state on multiple charges pending in several counties. The People argue that the defendant was not in custody for "an alleged offense," under the circumstances here, until he was served with the Du Page County indictment. Alternatively, the People contend that if the lodging of the complaint and warrant with Cook County is to be considered to have placed defendant in custody for the alleged offense in DuPage County, defendant suspended the operation of the 120-day rule by agreeing to a continuance of the Cook County case until February 11th, 1969, so that the 120-day period would not run on either charge until February 11th, 1969.
A similar issue was decided in People v. Clark, 104 Ill. App.2d 12, 244 N.E.2d 842 (1969), relied upon by the People. *fn1 In Clark the accused was arrested by Rock Island police on January 14th, 1967, after he had driven from Peoria County to Rock Island County where he had attempted to negotiate some forged checks. On January 15th, 1967, before any formal action was taken, the Rock Island police department turned the defendant over to the sheriff of Peoria County, where defendant was under indictment for armed robbery. However, Rock Island requested he be held for later prosecution in their county. On February 17th, 1967, an indictment was returned by the Rock Island Grand Jury charging defendant with forgery, and a bench warrant was issued but was not served on the defendant. Defendant was to be tried in Peoria County on March 27th, 1967 for armed robbery, and on that date the Rock Island state's attorney sent a copy of the bench warrant to the Peoria sheriff intending it as a detainer warrant. On April 19th the defendant was returned to Rock Island County and the next day he was arraigned on the Rock Island charge. On April 25th the defendant filed a motion for a bill of particulars. On May 23rd, the 129th day after his arrest, the defendant filed a motion for a discharge on the basis of the 120-day rule.
The court in deciding when the 120 days started to toll held that April 19th, 1967, the date the defendant was returned to Rock Island County after termination of proceedings in Peoria County, was the controlling date and not the date the warrant was lodged with Peoria County as a detainer warrant.
In Clark the court indicates (at page 17) that with no previous decision construing section 103-5(a), supra, or its antecedent, (Ill Rev Stats 1961, c 38, § 748), under similar facts, its course is charted by The People v. Jones, 33 Ill.2d 357, 211 N.E.2d 261 (1965) and The People v. Stillwagon, 373 Ill. 211, 25 N.E.2d 795 (1940).
In Jones the supreme court held that under the previous statute (section 748, supra, which in substance is the same as the present section 103-5(a), supra, except that it applies to "any person committed for a criminal or supposed criminal offense" (emphasis ours)), defendants were not entitled to discharge when complaints for robbery and assault were lodged while defendants were being held in the same county for unrelated offenses. The court held that the fourth month period after "commitment" did not begin to run until defendant was incarcerated on the charges contained in the indictment; and that, on the record, defendants were not "committed" on any date prior to the return of the indictment.
Defendant urges that the Jones case turns on the use of the word "committed" in the former statute, in place of "custody" as that word is now found in the present 120-day statute. We agree with the opinion in People v. Clark, supra, (at page 18) however, that this does not provoke a different construction. "Custody" and "commitment" are both terms which have commonly been used interchangeably to characterize actual "imprisonment," or "incarceration," or "confinement." See The People v. Moriarity, 33 Ill.2d 606, ...