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People v. Bazzell

OPINION FILED OCTOBER 5, 1977.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,

v.

LESLIE JACK BAZZELL, APPELLEE.



Appeal from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of St. Clair County, the Hon. Alvin H. Maeys, Jr., Judge, presiding.

MR. JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:

The circuit court of St. Clair County allowed the defendant's motion for discharge which alleged a violation of his constitutional right to a speedy trial. Defendant's case was scheduled for retrial 131 days after the jury had failed to reach a verdict in his first trial and the court had declared a mistrial. The appellate court affirmed the dismissal (40 Ill. App.3d 208), and we granted the State's petition for leave to appeal.

On September 6, 1973, the defendant was indicted on 15 counts of theft in excess of $150 and one count of official misconduct. He was arraigned on September 10, entered a plea of not guilty, and was released on bond. He was represented by retained counsel. On February 8, 1974, he filed a demand for an immediate jury trial and a motion for discovery. On June 28, 1974, the People filed a 236-page answer to the discovery motion. Defendant's trial commenced on July 15, 1974, and when the jury was unable to agree on a verdict a mistrial was declared on July 24.

The case was ultimately scheduled for retrial on December 2, 1974, at which time defendant moved that he be discharged. At a hearing on the motion the administrative assistant to the chief judge testified that because of scheduling problems no jury trials are held in St. Clair County in August and that the case had been set for trial during the weeks of September 9 and September 16, but was not reached at those times. The case was again scheduled for trial the weeks of October 21 and October 28. However, defendant was also under indictment for two counts of arson unrelated to the offenses involved in this case, and defendant's arson trial was also scheduled for the week of October 28. This trial resulted in a verdict of guilty on both counts on November 1, 1974. During the arson trial the defendant was found to be in direct contempt of court, and after the jury retired to consider its verdict the court conducted a hearing on the contempt charge and sentenced defendant to serve 30 days in the county jail. Following the guilty verdict, at some unspecified time in November, evidence was heard in aggravation and mitigation of the arson sentence. As of the date of the hearing on the motion to discharge in this case the defendant was still waiting to be sentenced in the arson case.

Section 103-5(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1973, ch. 38, par. 103-5(b)) provides:

"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 * * *."

Section 103-5(e) provides:

"If a person is simultaneously in custody upon more than one charge pending against him in the same county, or simultaneously demands trial upon more than one charge pending against him in the same county, he shall be tried * * * upon at least one such charge before expiration relative to any of such pending charges of the period prescribed by subparagraphs (a) and (b) of this Section. Such person shall be tried upon all of the remaining charges thus pending within 160 days from the date on which judgment relative to the first charge thus prosecuted is rendered * * * or, if such trial upon such first charge is terminated without judgment and there is no subsequent trial of * * * such first charge within a reasonable time, the person shall be tried upon all of the remaining charges thus pending within 160 days from the date on which such trial is terminated; * * *."

We are concerned here with the defendant's constitutional right to a speedy trial and not with the violation of the statutory time limitations prescribed by section 103-5. "While this statute implements the constitutional right to a speedy trial, it is not co-extensive with the right. [Citation.] Whether an accused has been denied a speedy trial within the constitution is a judicial question. [Citation.] However, the legislative expression through the enactment of the statute can certainly be considered by us in determining whether the right to a swift trial has been denied." People v. Love, 39 Ill.2d 436, 443.

Although the record does not contain sufficient information concerning the arson charges to indicate the applicability of section 103-5(e), we do note in that section an expression of legislative intent that following a mistrial a defendant should be retried within a reasonable time. This court has previously applied the reasonable time test to such situations. (People v. Olbrot, 49 Ill.2d 216, 219.) The declaration of a mistrial does not, in all cases, start again the running of another statutory period. The constitutional right to a speedy trial cannot be defined in terms of a precise period of time. (People v. Henry, 47 Ill.2d 312, 316.) The record in its totality must be examined to ascertain whether the defendant has enjoyed the right guaranteed by the constitution. People v. Aughinbaugh, 53 Ill.2d 442, 446.

As noted above, the defendant demanded an immediate trial on February 8, 1974. His trial commenced on July 15, 157 days after the demand. The statute requires that a person be tried within 160 days following such a demand. (Ill. Rev. Stat. 1973, ch. 38, par. 103-5(b).) The defendant's retrial was scheduled for December 2, 131 days after the declaration of a mistrial on July 24.

Since the record is not sufficient to indicate the applicability of section 103-5(e), we will consider this case as one involving a single indictment upon which there has been a demand for trial. The arson charges are relevant only as they relate to the reasonableness of the delay in the retrial of the defendant which, as we have noted above, is determined from the totality of the record.

Although the delay between the original demand for trial and the date set for retrial was substantial (288 days, excluding the time consumed by the original trial), in examining the record we note the presence of circumstances which account for a considerable amount of this time. Prior to trial defendant had filed a motion for discovery on February 8, 1974. In response to the motion, the State, on June 28, filed a lengthy answer of 236 pages consisting of copies of checks, reports of investigation, copies of statements, and numerous documents, all pertaining to the 15 counts of theft which allegedly had been accomplished by falsifying employment records and forging payroll documents. The original delay considered by itself is not inordinate.

After the mistrial on July 24 there were likewise some unusual circumstances partially, at least, explaining the delay in the retrial of the defendant. Although the defendant was not retried in August because no jury had been called for that month, the record contains no explanation for the failure to retry him in September. The trial of the defendant for the two charges of arson in October and the sentence imposed upon him for contempt, as well as the hearing in ...


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