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People v. Mckinney





APPEAL from the Circuit Court of Jefferson County; the Hon. HARRY ZIEGLER, Judge, presiding.


This is an appeal by the State from the dismissal of defendant Leon McKinney's aggravated battery charge (Ill. Rev. Stat. 1975, ch. 38, par. 12-4(b)(8)) on the ground that he was not brought to trial within 160 days as required by section 103-5(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1975, ch. 38, par. 103-5(b)).

That section provides in pertinent part as follows:

"(b) 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 * * *."

The purpose of this section is to protect defendant's constitutional right to a speedy trial. (People v. Hannah, 31 Ill. App.3d 1087, 335 N.E.2d 84.) If defendant is not tried within the prescribed period, he is entitled to release from the obligations of his bond or recognizance (Ill. Rev. Stat. 1975, ch. 38, par. 103-5(d)) and to dismissal of the charges against him (Ill. Rev. Stat. 1975, ch. 38, par. 114-1(a)).

• 1 The provision itself does not delineate how computation of the statutory period is made if delay is occasioned by defendant. It is well settled, however, that with respect to offenses committed prior to March 1, 1977 (as is the case here), delay occasioned by defendant tolls the running of the statute and a new statutory period commences to run from the date to which the case has been delayed. (People v. Donalson, 64 Ill.2d 536, 356 N.E.2d 776.) With respect to offenses committed on or after March 1, 1977, delay occasioned by the defendant only temporarily suspends for the time of the delay the period in which defendant is to be tried. People v. Donalson; Ill. Rev. Stat. 1975, ch. 38, par. 103-5(f).

The trial court in this case entered an order on July 1, 1976, dismissing the charge and releasing defendant from bond. This order was necessarily predicated on a finding that 160 days had elapsed since the last delay occasioned by defendant.

The State contends that the court erred in dismissing the instant charge, presenting two arguments. Its first argument is that an amended motion to dismiss charges for lack of speedy prosecution, filed on October 16, 1975, which was heard and denied on November 26, 1975, thus requiring the removal of the cause from a scheduled trial date of November 25, 1975, caused an indefinite continuance. Its second argument is that the period of time between January 26, 1976, and February 6, 1976, was delay attributable to defendant in that a motion to dismiss for lack of prosecution filed on the former date necessitated a delay until February 4, 1976, when the motion was heard and denied and that two withdrawals and appointments of defense counsel occurring on February 4 and 6 caused delay.

The facts of this are as follows. On November 4, 1974, defendant was charged with aggravated battery under the subsection which makes a simple battery committed on or about a public way, public property or public place of accommodation or amusement an aggravated battery (Ill. Rev. Stat. 1975, ch. 38, par. 12-4(b)(8)). Defendant was subsequently indicted and released on bond. On November 22, 1974, he filed a motion demanding a speedy trial. In the ensuing months many motions of defendant, primarily for reduction of bond, were filed and ruled upon. The cause was set for trial on April 16, 1975; however, no trial was had on that date. A record sheet entry of April 14, 1975, recites that on the motion of defendant the cause was continued and removed from the jury setting.

• 2 It is clear that no speedy trial violation existed at that time. Regardless of the effect of any of defendant's motions made during this period, if defendant had been tried on April 16, 1975, as scheduled he would have been afforded a speedy trial since that date was the 145th day from his demand. The April continuance on defendant's motion was a delay occasioned by defendant which tolled the statutory period. People v. Gooding, 61 Ill.2d 298, 335 N.E.2d 769.

The trial court's decision was clearly based on the events which occurred subsequent to this time. Consequently, it is the following facts which must be scrutinized and analyzed in deciding this appeal.

On October 8, 1975, defendant filed a motion for lack of prosecution based on speedy trial grounds. The motion was amended on October 16. On October 17, 1975, the cause was set for trial on November 25, 1975. Defendant's retained counsel filed on November 6, 1975, a motion to withdraw as counsel based on defendant's indigency and the unwillingness of his parents to incur indebtedness on his behalf. A hearing on the motion was set for November 12, 1975. The record sheet entry for November 12 recites that the attorneys appeared and argued the motion. Defendant's counsel was changed to appointed status, and November 26, 1975, was set as the date for a hearing on the motion to dismiss. The motion was denied on that date. Nothing appears of record until January 26, 1976. On that date defendant filed another motion to dismiss on speedy trial grounds. The motion was called for hearing on February 4, 1976, and denied. Also at this hearing, defendant's counsel made an oral motion to withdraw based on her belief that the press of other business would interfere with her representation of defendant. When the court ascertained that counsel had not discussed this situation with defendant a short recess was called. Upon reconvening, the court allowed the motion and appointed counsel other than the public defender. The court also exhibited an intent to have the cause set for trial in the next jury venire, approximately one month to a month and a half in the future. A record sheet entry of February 6, 1976, recites that the counsel appointed February 4 withdrew at that time because of a conflict of interest and that new counsel was appointed. The record is silent for over four months. On June 9, 1976, defendant filed the motion to dismiss for failure to try defendant within the proscribed statutory time which was granted on July 1, precipitating this appeal.

The State argues first that the setting of defendant's October 16, 1975, motion to dismiss for hearing on November 26, 1975, precluded having a trial on the scheduled date of November 25, 1975, and since no new date was set for trial, defendant's conduct caused what amounted to an indefinite continuance. It directs our attention on this issue to People v. Siglar, 49 Ill.2d 491, 274 N.E.2d 65. In its reply brief, the State argues further that since defendant is responsible for an indefinite continuance, the delay attributable to the defendant ends only when the defendant indicates he is ready for trial. (People v. Cornwell, 9 Ill. App.3d 799, 293 N.E.2d 139.) The State does not inform us whether it believes defendant ever indicated such readiness for trial.

We find this argument to be without merit. Our research has revealed no case which has held that a motion by defendant which interferes with a trial date is to be considered an indefinite continuance. ...

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