APPEAL from the Circuit Court of Randolph County; the Hon.
JOHN J. HOBAN, Judge, presiding.
MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
Defendants, Charles Smith and Lawrence Coleman, were indicted for the offense of aggravated battery. Each defendant filed a motion for discharge because of the lack of a speedy trial. The motions were originally denied but were later granted after a rehearing before a different judge. The State has appealed from the orders dismissing the charge against each defendant.
On September 18, 1974, defendants were inmates of the Illinois State Penitentiary, Menard, in Randolph County, Illinois. On that date, as two prison guards, Officer Everett Gray and Lieutenant D. Misselhorn, were attempting to walk defendant Smith from the prison dining hall to a segregation unit, both defendants allegedly struck Officer Gray. Several other prison guards then assisted and took both defendants to a segregation unit.
On September 20, 1974, a letter was mailed by the authorities at Menard to the State's Attorney of Randolph County notifying him of this incident and asking him to place charges against defendants. On December 17, 1974, the grand jury of Randolph County returned an indictment against each defendant for aggravated battery. Each of the defendants was brought before the court on January 2, 1975, for his initial appearance on the charge against him. Each defendant was presented with a copy of the indictment and separate counsel was appointed to represent each defendant. On February 13, 1975, defendant Smith filed a motion for discharge based upon the State's not having brought him to trial within 120 days pursuant to section 103-5(a) of the Code of Criminal Procedure (Ill. Rev. Stat. 1975, ch. 38, par. 103-5(a)). Defendant Smith contended in this motion that the speedy trial statutory time period had begun to run on September 18, 1974, when he had been placed in segregation, and that the 120th day had been reached on January 17, 1975. Defendant Coleman filed an identical motion for discharge on February 18, 1975. The court held a hearing on both motions on February 24, 1975. The court then denied both motions but granted defendants leave to reinstate the motions at a later date if they could obtain more information with respect to the reasons for their having been placed in segregation. On March 5, 1975, a court calendar was filed which showed that the cases against defendants were to be tried during the week of March 30, 1975, or the week of April 7, 1975.
Both defendants filed a motion for substitution of judges on March 14, 1975. Thereafter, defendant Coleman, on March 21, 1975, and defendant Smith, on March 24, 1975, filed petitions for rehearing on the motion for discharge. The petitions for rehearing referred, inter alia, to the letter written by the prison authorities to the State's Attorney of Randolph County on September 20, 1974, and to the several reports of the various officers who had either witnessed the alleged incident or assisted in taking defendants to the segregation unit. The petitions for rehearing pointed out that the several reports (which appear in the record on appeal) stated that defendants had been placed in segregation to await prison disciplinary action on the reports filed against them.
The petitions for rehearing were allowed; and on March 31, 1975, a rehearing on the motions for discharge was held before a different judge. The motions were allowed because defendants had not been brought to trial within 120 days of their being placed in segregation as a result of the alleged incident.
The State appeals pursuant to Illinois Supreme Court Rule 604(a) (Ill. Rev. Stat. 1975, ch. 110A, par. 604(a)), and argues, first, that the applicable speedy trial statute was section 3-8-10 of the Unified Code of Corrections (Ill. Rev. Stat. 1975, ch. 38, par. 1003-8-10), rather than section 103-5(a) of the Code of Criminal Procedure (Ill. Rev. Stat. 1975, ch. 38, par. 103-5(a)). The State asserts, second, that even if section 103-5(a) of the Code of Criminal Procedure were the applicable statute, the 120-day period did not begin to run until the defendants were served with the indictments on January 2, 1975, and so the 120-day period had not expired when the defendants moved to dismiss the indictments.
• 1 Since the first argument was not advanced by the People at the hearing on the motions to dismiss the indictments, this court could properly disregard this contention. (People v. McAdrian, 52 Ill.2d 250, 287 N.E.2d 688.) If, however, the circuit court applied the wrong statute in determining whether the defendants were denied a speedy trial, it committed a plain error affecting the substantial right of the People to bring the defendants to trial within a longer period than that allowed by the circuit court. Noting the possible existence of plain error, this court, in the exercise of its discretion, will consider the People's argument that section 3-8-10 of the Unified Code of Corrections (Ill. Rev. Stat. 1975, ch. 38, par. 1003-8-10), instead of section 103-5(a) of the Code of Criminal Procedure (Ill. Rev. Stat. 1975, ch. 38, par. 103-5(a)), was the relevant speedy trial statute. See Ill. Rev. Stat. 1975, ch. 110A, par. 615(a); People v. McAdrian.
There are basically two statutory speedy trial provisions in Illinois. One specifies a 120-day period which begins to run automatically when a defendant is arrested and continuously held in custody for an alleged offense. Section 103-5(a) of the Code of Criminal Procedure sets forth this provision as follows:
"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 an examination for competency ordered pursuant to Section 104-2 of this Act, by a competency hearing, by an adjudication of incompetency for trial, by a continuance allowed pursuant to Section 114-4 of this Act after a court's determination of the defendant's physical incapacity for trial, or by an interlocutory appeal."
The second provision is applicable to a defendant who is arrested but then released on bail or recognizance rather than held in custody, and specifies a 160-day period which begins only when the defendant demands that he be given a speedy trial. Section 103-5(b) of the Code of Criminal Procedure contains this provision:
"Every person on bail or recognizance shall be tried by the court having jurisdiction within 160 days from the date defendant demands trial unless delay is occasioned by the defendant, by an examination for competency ordered pursuant to Section 104-2 of this Act, by a competency hearing, by an adjudication of incompetency for trial, by a continuance allowed pursuant to Section 114-4 of this Act after a court's determination of the defendant's physical incapacity for trial, or by an interlocutory appeal."
Section 3-8-10 of the Unified Code of Corrections incorporates section 103-5(b) by reference:
"* * * [S]ubsection (b), (c) and (e) of Section 103-5 of the Code of Criminal Procedure of 1963 shall also apply to persons committed to any institution or facility or program of the Illinois Department of Corrections who have untried complaints, charges or indictments pending in any county of this State, and such person shall include in the demand under subsection (b), a statement of the place of present commitment, the term, and length of the remaining term, the charges pending against him to be tried and the county of said charges, and the demand shall be addressed to the state's attorney of the county where he is charged with a copy to the clerk of that court and a copy to the chief administrative officer of the Department of Corrections institution or facility to which he is committed. The state's attorney shall then procure the presence of said defendant for trial in his county by writ of habeas corpus. Additional time may be granted by the court for the ...