APPEAL from the Circuit Court of Ford County; the Hon. GEORGE
KAYE, Judge, presiding.
MR. PRESIDING JUSTICE SIMKINS DELIVERED THE OPINION OF THE COURT:
Defendant-appellant Gerald Carnes was indicted on August 21, 1972, for the offense of indecent liberties with a child. He was tried before a jury, convicted, and sentenced 10 to 20 years. On November 10, 1972, the trial judge denied defendant's motion to suppress oral and written confessions. On November 16, 1972, trial was commenced. On that date a jury was selected, including two alternate jurors. The trial was then recessed to November 20, 1972, on which date the evidence was received and the guilty verdict returned.
On December 19, 1972, defendant filed a motion in arrest of judgment and a motion for new trial, alleging errors committed during the course of the trial. On the same day evidence was taken in aggravation and mitigation, and apparently on defendant's petition for probation though no written application for probation appears in the record. The transcript of this hearing is incomplete. It appears to have been taken by means of a recording machine and that some of the tapes were either misplaced or erased prior to preparation of the record. How much of the proceedings is missing we are unable to determine.
On December 19, 1972, sentence was imposed and the mittimus issued. The records of the Department of Corrections show that the defendant was transferred to the custody of the Department on December 20, 1972. At this time defendant's post-trial motions had not been heard, nor had they been ruled on.
On March 20, 1973, the trial judge's docket entry was made as follows:
"Post-trial motions argued. Advisement."
On April 9, 1973, the post-trial motions were amended to include, as grounds for new trial, the contention that the sentence imposed was excessive and that the defendant should have been admitted to probation.
On July 30, 1973, the defendant filed a petition for post-conviction relief. The sole contention being that over 216 days had elapsed since the motions had been filed and 116 days had elapsed since the motions had been argued, and that the motions had not been ruled upon. These circumstances, defendant contended, amounted to a denial of his right to speedy trial and prompt appeal, and was a denial of due process.
On August 13, 1973, some 8 months after defendant had begun serving his sentence, the defendant's post-trial motions were denied.
On September 27, 1973, after hearing had September 13, 1973, defendant's petition for post-conviction relief was denied.
On September 27, 1973, notice of appeal from the order denying post-conviction relief was filed.
During the September 13, 1973, hearing on the post-coviction petition counsel for the defendant indicated that he had intended to file a notice of appeal from the order entered on August 13, 1973, denying the post-trial motions, but that since over 30 days had expired he could not do so in the trial court, and that he also felt that any errors committed during the trial could be reached on the appeal from the denial of post-conviction relief.
On October 1, 1973, the trial judge entered an order directing preparation of the record on appeal and appointing the Illinois Defender Project as counsel for defendant on appeal.
On August 9, 1974, counsel on appeal, discovering that there was no notice of appeal from the orders entered August 13, 1973, which denied the post-trial motions, in an effort to pursue a direct appeal from the conviction and sentence, filed in this court a motion for leave to file late notice of appeal, nunc pro tunc to March 12, 1974. This motion was filed 1 year, lacking 4 days, from the date the orders were entered in the trial court. We took ...