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People v. O'malley

OPINION FILED AUGUST 24, 1982.

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

v.

PETER O'MALLEY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Earl E. Strayhorn, Judge, presiding.

JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT: Defendant was charged by indictment with two counts of official misconduct (Ill. Rev. Stat. 1979, ch. 38, par. 33-3(b)), and one count each of assault (Ill. Rev. Stat. 1979, ch. 38, par. 12-1(a)) and battery (Ill. Rev. Stat. 1979, ch. 38, par. 12-3(a)(2)). After a bench trial, defendant was found not guilty of official misconduct and guilty of assault and battery. He was fined $500 on the assault conviction and $1,000 on the battery conviction.

Defendant raises three issues on appeal: (1) whether he was deprived of his statutory right to a speedy trial; (2) whether he was deprived of a fair trial by the prosecutor's closing argument; and (3) whether the finding of the trial court was improper and inconsistent.

Defendant was a Cook County forest preserve ranger. On January 28, 1979, defendant's patrol car was parked, blocking a roadway used to exit Caldwell Woods Forest Preserve, while he was writing a parking ticket. Paul Ferris and Alex Sipari, attempting to exit the forest preserve in their cars, complained about the blocked roadway. A scuffle occurred, during which defendant allegedly slammed Ferris against a van several times and punched at Sipari but missed. Defendant arrested Ferris and Sipari, charging them variously with assault, resisting arrest, and leaving an unattended vehicle with its motor running. They were handcuffed, placed in the squad car, and taken to the Village of Skokie police station for booking. We find nothing in the record as to the disposition of the charges.

On March 19, 1979, after the incident received widespread publicity in a Chicago newspaper, the grand jury returned a four-count indictment against defendant charging him with two counts of official misconduct and one count each of assault and battery (indictment No. 79-1583).

The elements of official misconduct that defendant was charged with are: "A public officer or employee commits misconduct when, in his official capacity, he commits any of the following acts: * * * (b) Knowingly performs an act which he knows he is forbidden by law to perform." (Ill. Rev. Stat. 1979, ch. 38, par. 33-3(b).) Defendant was charged with one count of official misconduct based on the underlying offense of assault and one count based on the underlying offense of battery.

The circuit court dismissed indictment No. 79-1583 on October 26, 1979. The basis of the dismissal was prosecutorial misconduct before the grand jury. At the time of the dismissal, 125 days had expired from the term of 160 days in which the State was required to bring defendant to trial. Ill. Rev. Stat. 1979, ch. 38, par. 103-5(b).

On October 26, 1979, the State filed a notice of appeal from the dismissal order. On November 2, 1979, the State filed a docketing statement in the Illinois Appellate Court. In an order dated November 8, 1979, the appellate court set the following schedule for the appeal: record due January 25, 1980; appellant's brief due April 24, 1980; appellee's brief due July 9, 1980; reply brief due July 22, 1980. The State did not file anything in the appellate court subsequent to its docketing statement.

On May 20, 1980, indictment No. 80-C-3379 was returned charging defendant with the same four counts as in No. 79-1583. On May 21, 1980, the State filed a motion to dismiss the appeal in the appellate court which was granted on June 2, 1980. Defendant subsequently filed a motion to dismiss indictment No. 80-C-3379, alleging violation of his statutory right to a speedy trial. The motion was denied by the trial court.

After a bench trial, defendant was convicted of assault and battery and fined $500 and $1,000. Defendant was found not guilty of official misconduct.

I

Defendant initially contends that he was deprived of his statutory right to a speedy trial. The Illinois speedy trial statute provides that when a defendant is not in custody, he must be brought to trial within 160 days from the date he demands trial. (Ill. Rev. Stat. 1981, ch. 38, par. 103-5(b).) At the time the first indictment against defendant was dismissed, 125 days had expired from the 160-day term. Defendant contends that the time when the State's appeal was pending in the appellate court must be counted in computing the 160 days. The following timetable aids in understanding defendant's argument:

March 19, 1979 Indictment No. 79-1583 returned.

April 2, 1979 Defendant demanded trial.

October 26, 1979 Indictment No. 79-1583 dismissed. (Parties agree that 125 days ...


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