APPEAL from the Circuit Court of Champaign County; the Hon.
HAROLD L. JENSEN, Judge, presiding.
MR. JUSTICE CRAVEN DELIVERED THE OPINION OF THE COURT:
An information was filed on June 6, 1978, in Champaign County, charging defendant with the offense of bribery. On December 6, 1978, after a hearing on defendant's motions, the charge was dismissed for failure to bring defendant to trial within 160 days of his demand for a speedy trial (Ill. Rev. Stat. 1977, ch. 38, par. 103-5(b)). The State appeals from the dismissal of the charge pursuant to Supreme Court Rule 604(a)(1) (58 Ill.2d R. 604(a)(1)).
The relevant facts are few. Defendant, who was present in court with counsel on June 27, 1978, requested a preliminary hearing and a reduction of bond. On the same day, defendant filed a written demand for a speedy trial with the clerk of the circuit court, as evidenced on the docket sheet and in the common law record.
The record establishes that defendant's demand for a speedy trial was neither made in open court, nor otherwise in the presence of the State's Attorney. A copy of the demand was not served on the State.
The single issue on appeal is whether constructive notice of the demand, as reflected in the common law record and on the docket sheet, is sufficient notice under the statute.
Section 103-5(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 103-5(b)) provides in part:
"(b) Every person on bail or recognizance shall be tried by the court having jurisdiction within 160 days from the date defendant demands trial * * *."
The statute does not provide that notice of the demand should be given to the State, but judicial interpretation of section 103-5(b) has resulted in "notice" becoming an integral part of the demand requirement. See People v. Schoo (1977), 55 Ill. App.3d 163, 371 N.E.2d 86; People v. O'Shea (1975), 26 Ill. App.3d 826, 326 N.E.2d 230; People v. Rockett (1967), 85 Ill. App.2d 24, 228 N.E.2d 219.
The notice requirement in turn has led to judicial consideration of what constitutes sufficient notice under section 103-5(b). (People v. Uryasz (1975), 32 Ill. App.3d 825, 336 N.E.2d 813 (State given adequate notice because written demand was part of common law record and copy was served on State); Rockett (demand must be communicated to State, "preferably by written notice, but certainly by a formal motion which is preserved in the record"); see People v. Snyder (1975), 32 Ill. App.3d 1003, 337 N.E.2d 108 (oral demand for trial made during court hearing and preserved on docket sheet is adequate demand).) Until recently, however, the precise issue of whether the filing of the motion alone puts the State on notice, so as to constitute a demand within the meaning of section 103-5(b), had not been decided by an appellate court. Then, in People v. Hamilton (1978), 65 Ill. App.3d 261, 381 N.E.2d 1168, the court determined that the record properly did not reflect a demand for trial when the defendant only filed a written motion and did not serve demand on the State or otherwise bring the demand before the court and opposing counsel. The court imposed upon defendant the obligation to take some affirmative step to apprise the State that demand for trial was being made.
The fundamental nature of defendant's right to a speedy trial compels us to disagree with Hamilton's resolution of this issue. Section 103-5(b) was enacted so that a defendant out on bond could insure his constitutional right to a speedy trial, which is intended to avoid oppression and prevent delay. Under section 103-5(b), a defendant has the burden of demanding a trial, but once a demand has been made, the criminal justice system has the burden to provide a trial within 160 days. This defendant filed a written motion with the clerk of the circuit court, and the motion was indicated in the record. While serving a copy of the demand on the State is an advisable measure, and one that is not unduly burdensome, we cannot conclude that the demand made by defendant here was ineffective for lack of proper notice to the prosecution. In this case, the trial court granted the motion to dismiss and concluded as a matter of fact that the demand was filed and that a substantive right like that afforded by section 103-5(b) is not to be waived or avoided by the failure to make proof of service. The trial court also concluded that it was an obligation of counsel to periodically check the file and the docket sheet and be advised of and acquainted with the case. We cannot say that the trial court's determination that the State had constructive notice of the motion is against the manifest weight of the evidence, and we accordingly defer to that factual finding. The judgment of the circuit court is affirmed.
Mr. JUSTICE MILLS, dissenting:
Mr. Justice Blackmun has remarked that "It is much easier to write a biting dissent than a ...