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People v. Tomasello

OPINION FILED JULY 23, 1981.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,

v.

JEANNE TOMASELLO, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Du Page County; the Hon. JOHN S. TESCHNER, Judge, presiding.

MR. JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:

The State appeals from two orders of the Circuit Court of Du Page County which were entered in the prosecution of defendant, Jeanne Tomasello, for distribution of cocaine in violation of the Controlled Substance Act (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1401). The trial court dismissed for lack of a speedy trial counts 1 and 3 of indictment No. 75-4813-G and count I of indictment No. 79 CF 1667. The trial court also granted the defendant's motion to strike the testimony of witnesses against her and exhibits admitted into evidence at the trial of count 2 of indictment No. 75-4813-G. We granted leave to consolidate these issues on appeal.

Because this appeal involves a determination of whether the speedy-trial term expired, a detailed factual statement is in order. On August 6, 1975, defendant was arrested and charged by complaint with unlawful delivery of a controlled substance on four separate occasions. The defendant's bail bond required her to appear before the Circuit Court of Du Page County on August 14, 1975. On that date, it appears that the defendant made a demand for trial, although there is no written or oral demand in the record before us. This omission is attributed to fragmenting of the record due to two prior appeals in this same prosecution which this court decided by orders entered under Supreme Court Rule 23. (See People v. Tomasello (1979), 73 Ill. App.3d 1110, 395 N.E.2d 1248; People v. Tomasello (1977), 49 Ill. App.3d 1129, 368 N.E.2d 230 (per curiam).) A preliminary hearing was held on September 16, 1975. On that date probable cause to hold the defendant for trial was found and defendant's attorney demanded trial. The transcript from those proceedings contains a reference to the earlier demand made by defendant on August 14, 1975:

"MR. ROCCO [defendant's attorney]: Your Honor, on behalf of both [another person was named as a co-defendant in two of the four offenses] defendants I would demand trial.

THE COURT: In all cases, counsel?

MR. ROCCO: Yes, your Honor.

THE COURT: All right.

Will you give me a written Demand?

MR. ROCCO: Yes, your Honor.

MR. STOGSDILL [Assistant State's Attorney]: May the record indicate that was already done on the 14th?

THE COURT: All right.

To be clear in the record, counsel, prepare a new Demand in each of the four cases.

MR. ROCCO: Yes, your Honor."

Thus there was a demand for trial on August 14, 1975, and the speedy-trial term would then have expired 160 days thereafter, or approximately January 24, 1976. This assumes, of course, that no event intervened to toll the period. See discussion below.

On October 30, 1975, a four-count indictment was filed against defendant for four separate deliveries of cocaine to Agent Charles Doerr occurring during July 1975. This indictment was numbered 75-4813-G. Counts II and IV of this indictment charged Class I felonies; counts I and III charged Class II felonies.

Arraignment was set for November 19, 1975, but on that day Mr. Edward Ward appeared on behalf of defense attorney Rocco and stated that defendant had not appeared as he had expected and he did not know her so as to be able to find her in the courthouse. The court asked the State if it wished to continue the matter. The State assented, and the date was set for November 26, 1975. After that date there were two delays not relevant to our discussion because we note that if the delay of November 19, 1975, is attributed to defendant, then another 160-day term would end approximately May 6, 1976 (160 days after November 26, 1975).

On February 25, 1976, the defendant's attorney failed to appear. The trial court set the cause for the next day. On February 26, 1976, the defendant's attorney ...


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