APPEAL from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County;
the Hon. WILLIAM S. WHITE, Judge, presiding.
MR. JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 27, 1973.
The defendant, Richard Zuniga, in separate jury trials in the circuit court of Cook County, was convicted of the crimes of attempt to murder and murder. He was sentenced to from 5 to 15 years for attempt to murder and from 40 to 75 years for murder. On appeal, the appellate court reversed both convictions and this court granted the State's petition for leave to appeal. 133 Ill. App.2d 442, 273 N.E.2d 258.
The defendant had been charged with having murdered one man by shooting him and attempting to murder another by shooting at him during a fight which occurred outside a tavern in the early morning of October 17, 1966.
It was the appellate court's position that the defendant had to be tried for both offenses within 120 days following the date that he had been taken into custody; that delay in the proceedings had not been occasioned by the defendant; that the defendant had not been tried within 120 days from the time he had been taken into custody and should therefore be discharged under the provisions of section 103-5 of the Code of Criminal Procedure (Ill. Rev. Stat. 1965, ch. 38, par. 103-5), which provides:
"(a) 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 in custody unless delay is occasioned by the defendant, by a competency hearing, or by an interlocutory appeal."
The defendant was arrested on October 17, 1966. On October 21, in separate indictments, he was indicted for attempt to murder and murder. He was arraigned on October 28, at which time his cases were assigned to a trial judge who continued them to November 28. The defendant was not released on bail. On November 7, he made a motion to have his cases advanced from November 28 to November 7, which was allowed. On that date he filed a petition for substitution of judges which was also allowed. On the same day the presiding judge reassigned the cases to another judge for trial who continued them to January 3, 1967. By virtue of three more continuances the cases were continued to February 24, on which date the State filed a petition for an extension of time of 60 days for the purpose of securing the presence of a witness whom it claimed was unavailable. Instead of allowing the full 60 days' extension of time as authorized by section 103-5(c), the court granted an extension of time to April 12.
On April 10, 1967, the cases were called and the State made a motion to consolidate both indictments for trial. The defendant objected to the allowance of the motion and it was denied. The defendant's motion to be discharged because he had not been brought to trial within 120 days was also denied. The State elected to try the indictment charging attempt to murder first and on April 10 proceeded with the trial of that case, which resulted in a verdict of guilty on April 20. None of the continuances had been granted on the motion of the defendant. The murder case was reassigned to another judge and continued to April 27, on which date the court denied the defendant's motion to dismiss the murder indictment because he had not been brought to trial within 120 days.
The appellate court held that the statutory period commenced to run on October 17, 1966, the day the defendant was originally taken into custody. If this is the proper date from which to compute the time, more than the 120-day statutory period had run on February 24 when the court allowed the State's motion to extend the period to secure a witness and the defendant should be discharged. However, a delay occasioned by the accused is a waiver of the right to be tried within the statutory period, and the statute will not apply to discharge the accused until a new 120-day period has elapsed. (People v. Hairston, 46 Ill.2d 348; People v. Kuczynski, 33 Ill.2d 412.) This court has held that a motion for a substitution of judges constitutes a delay occasioned by the accused which will interrupt the running of the statutory period. People v. Iasello, 410 Ill. 252; People v. Rankins, 18 Ill.2d 260.
The defendant contends and the appellate court found that the defendant's motion for a substitution of judges did not cause a delay which would interrupt the running of the statutory period because the defendant's cases had been continued to November 28 by the original judge to whom they had been assigned. The defendant had moved to have his cases advanced to November 7, at which time he presented his petition for substitution of judges. Of course, the reason the defendant requested that his cases be advanced to November 7 was for the purpose of presenting that motion. Section 114-5 (Ill. Rev. Stat. 1965, ch. 38, par. 114-5) requires that the motion for substitution of judges be made within 10 days after the cause has been placed on the trial call of a judge, and November 7 was the 10th day that the defendant's cases had been on the original judge's trial call. In any event, the cases lost whatever seniority status they had acquired on this judge's calendar and had to be returned to the presiding judge for reassignment to another trial judge. The defendant's cases then assumed their position on that judge's calendar, presumably at the bottom of the list of pending cases. Without knowing the exact condition of each judge's calendar and length of time required to dispose of each case thereon it is impossible to state whether the motion for a substitution of judges actually delayed bringing the defendant's cases to trial or advanced them as the appellate court found. We do know that the motion and reassignment started anew the administrative procedure of bringing the defendant's cases to trial. The mere fact that the defendant had his cases advanced from November 28 to November 7 for the purpose of presenting his motion does not distinguish this case from our holdings in People v. Iasello and People v. Rankins. We hold that the proper date from which the 120-day period is to be computed is November 7, the date of the motion for substitution of judges. Using this date, the trial judge, on February 24 (within 120-day period), properly extended the trial date to April 12 to permit the State to procure a witness. The trial on the charge of attempt to murder commenced on April 10, and the defendant was not entitled to be discharged.
Although the defendant has taken a different position in the appellate court and in this court, in the trial court his counsel agreed that November 7 was the proper date from which to compute the 120-day period. His motion for discharge in that court was based on his contention that the trial judge had erroneously entered an order on February 24 which he contended was not to take effect until March 10 and was thus not effective to extend the trial date to April 12.
The appellate court concluded that prior to the 1967 amendment to section 103-5(e) it was incumbent upon the State to bring the defendant to trial on both the attempt to murder charge and the murder charge within 120 days from the time he was taken into custody. It held that section 103-5(e), as it existed in 1965, did not allow the prosecution a reasonable time after the conclusion of the trial on the first charge within which to try the defendant on the second charge. The opinion of the appellate court was filed prior to our opinion in People v. Olbrot, 49 Ill.2d 216, wherein we stated at page 219, "It is clear that if the first trial * * * had resulted in a guilty verdict rather than a mistrial, section 103-5(e) would have provided an additional 120 days from the date of defendant's incarceration for that offense in which to try the four other pending indictments." Olbrot considered section 103-5(e) before the 1967 amendment. This is the same section applicable to this case (Ill. Rev. Stat. 1965, ch. 38, par. 103-5(e); it provides in part: "While any person is incarcerated in this state on sentence for any offense, if there is pending against him in the same county in which he was convicted one or more additional charges of another offense he shall be tried on such charge or charges within 120 days from the date of his incarceration or such untried causes shall be barred * * *." Following Olbrot we hold that the State had 120 days following the verdict in the attempt to murder trial within which to bring the defendant to trial on the murder charge.
The verdict on the attempt to murder charge was returned on April 20, 1967. On April 27, on motion of the defendant, the murder case was continued to May 8, and on May 8, again on motion of the defendant, the case was continued to May 22. By virtue of several additional continuances by the court, and on motion of the prosecutor, the case was continued to September 18 (within 120 days from May 22, the last date to which the case had been continued on motion of the defendant). On September 18, again on motion of the defendant, the case was continued to September 25, on which date the trial of the murder indictment began. After each continuance granted on motion of the defendant the statute started to run anew from the date to which the cause had been continued. (People v. Hairston, 46 Ill.2d 348.) At no time following the verdict in the attempt to murder case on April 20 did a 120-day period run between continuances granted to the defendant.
Defendant argues that the trial court erred in allowing a witness for the People in the trial for attempt to murder to state that he was under the protection of the State's Attorney's office. Evaristo Noriega was the first witness called by the prosecution. This witness had gone to Mexico after the occurence which led to the indictments. It was his absence which caused the State to petition for an extension of time within which to try the ...