Appeal from the Circuit Court of Du Page County; the Hon.
Robert Nolan, Judge, presiding.
JUSTICE HOPF DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 20, 1982.
The State appeals from an order of the circuit court of Du Page County dismissing criminal charges against defendant, Roy M. Wentlent, Jr., for failure to comply with the 120-day speedy trial provision of section 103-5(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 103-5(a)). On appeal, the State contends that (1) the decision of the trial court was against the manifest weight of the evidence, and (2) the trial court erred in applying section 103-5(a) to the instant case.
On October 22, 1980, defendant was charged by complaint issued in Du Page County with the offense of felony theft. A warrant for defendant's arrest was also issued the same day. On February 14, 1981, defendant was arrested in Cook County on charges arising there and was incarcerated in the Cook County jail. The charges in Cook County were subsequently dropped on March 19, 1981, and on March 20, 1981, defendant was remanded to the Joliet Correctional Center to serve a six-month term of imprisonment for an unrelated parole violation.
On April 21, 1981, the Joliet Correctional Center acknowledged receipt of a Du Page County detainer for the instant offense. There was no indication on what date the detainer had been issued by Du-Page County. On April 28, 1981, the defendant filed a notice and request for the disposition of the Du Page County charge in conformity with section 3-8-10 of the Unified Code of Corrections. Ill. Rev. Stat. 1981, ch. 38, par. 1003-8-10.
Pursuant to a writ of habeas corpus ad prosequendum, the defendant was brought before the court in Du Page County on May 29, 1981. The case was continued to July 10, 1981, and on that date the State filed a two-count information charging the defendant with theft. The case was set for trial on August 10, 1981.
On the day of trial the defendant moved for discharge under section 103-5(a) on the ground that he had not been brought to trial within 120 days of March 19, 1981, the day when the Cook County charges had been dropped. Defendant claimed that a Du Page County "detainer" had been lodged against him on March 9, 1981, while he was incarcerated in the Cook County jail. Therefore, he argued, he was "in custody" for Du Page County when the Cook County proceedings terminated, and the 120-day limitation period of section 103-5(a) of the Code of Criminal Procedure of 1963 had expired. (Elapsed time between March 19 and the August 10 trial date = 144 days.)
The State, on the other hand, argued that no Du Page County detainer had lodged against defendant until after he was committed to the Joliet Correctional Center. Since defendant was "committed" to a Department of Corrections, the State reasoned the 160-day limitation of section 3-8-10 applied and the speedy trial term did not begin to run until defendant demanded a speedy trial on April 28, 1981. Under this theory, the trial date was well within the 160-day limitation. (Elapsed time between April 28 and August 10 = 104 days.)
The evidence regarding the date and place of service of the complaint and arrest warrant is conflicting. The defendant testified he was served in open court with the Du Page County complaint and warrant on March 9, 1981, as he was appearing on the Cook County charge. Defendant later testified he was unsure of the exact date of service and that no papers were handed to him in court. He also stated that he had no copies of any papers that were handed to him at that time. Defendant stated that to the best of his knowledge he was sent to Joliet on March 20, 1981, to serve a six-month term for parole violation.
The complaint itself indicates that a March 9, 1981, service date was crossed out and replaced with the date of May 28, 1981. On the signature line of the complaint, the name "Detective Paul Sarch" was also lined out, and the name "G. Figiel" appears above it. The arrest warrant indicates that it was served on the defendant on May 29, 1981, by Officer Figiel. Unlike the complaint, the arrest warrant contains no irregularities on its face.
Mary Kloeckner, an assistant in the warrant division of the Du Page County Sheriff's Office, testified for the State. Ms. Kloeckner testified that all complaints, warrants, and all detainers which are to be filed in other counties go through the sheriff's office and according to their records no detainer or hold had been placed against the defendant in Cook County. She stated that the only detainer on file in connection with the defendant was the one acknowledged by the Joliet Correctional Center on April 21, 1981. She did not indicate the date the detainer had been issued. The detainer itself was not produced at the hearing. The witness testified that according to the sheriff's records, the original complaint and warrant were served on the defendant on May 29, 1981, by Officer Figiel.
Gregg Figiel also testified for the State. He testified that on May 29, 1981, he served the defendant with the complaint and arrest warrant. Deputy Figiel stated that the May 28 date on the complaint was not in his handwriting, but the signature was his. He noted that the May 28 service date on the complaint was incorrect, since it was not served until May 29, 1981. He recalled serving the defendant with the yellow copy of the complaint and testified that if defendant had been served on March 9, 1981, no yellow copy would have been available for service on May 29, 1981.
In a side bar, defense counsel informed the court that the defendant claimed to have the yellow copy of the complaint, dated March 9, 1981, among his papers at the penitentiary. However, this copy was never produced by defense counsel for the court's inspection, and is not a part of the record on appeal.
The trial court found that defendant was "served with process" on March 9, 1981, while he was incarcerated in Cook County, that a detainer became effective on that date, and that the defendant was in custody for the instant offense upon termination of the Cook County proceedings. In accordance with these findings, the court discharged the defendant pursuant to the speedy trial provisions of ...