Appeal from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of
JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 24, 1982.
On August 27, 1979, the circuit court of Cook County granted a motion by the defendant, Ronald Brown, to dismiss an indictment against him for the murder of Tony Williams. The motion alleged post-indictment delay that violated defendant's right to a speedy trial. On appeal, the dismissal of the murder indictment was unanimously affirmed. 94 Ill. App.3d 609.
The issues before this court are: (1) Did a mandamus proceeding on a separate charge toll the statutory period of limitations for trial in the Williams case? (2) Did the trial court err by denying the State's motion for a continuance and dismissing the indictment on the 158th day of the 160-day statutory term?
A rather detailed recitation of the facts is necessary to portray the sequence of events leading to dismissal of the indictment. On April 29, 1976, defendant was arrested for the January 10 murder of Tony Williams. He remained in custody until May 18, 1977, when he was released on $25,000 bond. During this period, defendant did not seek to advance trial on the charge. From the date of his arrest to November 20, 1977, the case was continued 24 times.
On November 20, 1977, defendant was arrested and charged by information with the armed robbery of Michael Trice. He remained in custody until March 31, 1978, when he was released on $5,000 bond. From November 20, 1977, to July 3, 1978, the Williams murder case (for which the bond remained in effect) was continued 12 more times.
On July 3, 1978, defendant was arrested and later charged with the aggravated kidnaping, armed robbery, and murder of Charles H. McGee. Defendant was never admitted to bail on the three McGee charges and has been incarcerated since July 3, 1978.
On August 7, 1978, the trial court revoked defendant's bond on the Williams murder charge, and the case was continued by agreement until August 28, 1978. In the meantime, on August 8, 1978, defendant pleaded guilty to the Trice armed robbery and was sentenced to six years' imprisonment.
On December 11, 1978, trial commenced on the McGee charges. On December 22, following a four-day bench trial, defendant was found guilty of the aggravated kidnaping, armed robbery, and murder of Charles H. McGee. The State had requested a death penalty hearing on the McGee murder and on January 29, 1979, the trial court held the Illinois death penalty statute unconstitutional. The State then filed a petition for writ of mandamus before this court. On November 21, 1979, this court vacated the trial court's order and remanded the cause for a sentencing hearing. (People ex rel. Carey v. Cousins (1979), 77 Ill.2d 531, cert. denied (1980), 445 U.S. 953, 63 L.Ed.2d 788, 100 S.Ct. 1603.) On May 7, 1980, defendant was sentenced to 80 years on the murder count, 30 years on the armed-robbery count and 15 years on the aggravated-kidnaping count, the sentences to run concurrently.
From August 7, 1978, to January 29, 1979, the Williams murder case was continued 19 additional times. On January 29, 1979, defendant for the first time demanded trial in the Williams case. On the State's motion, the trial court continued the cause to March 19, 1979, when a trial date was to be set. On this date defendant's trial counsel did not appear and defendant was represented by an associate of his trial counsel. The case was then continued by agreement to March 22, 1979.
On March 22, the State informed the trial court it was still attempting to locate witnesses in the Williams case. In asking for a continuance, the State argued that as a result of the agreed continuance from March 19 to March 22, the statutory period of limitations would expire on July 19 (119 days from that time). The cause was then continued to July 19, 1979. On that date, the State argued for the first time that the statutory term was not running in the Williams case inasmuch as a final disposition had not been rendered on the McGee case. The State contended that section 103-5(e) of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1975, ch. 38, par. 103-5(e)) allowed it 160 days from the final judgment in the McGee case, which had not yet been rendered.
Alternatively, the State argued that the statutory term was "160 days from March 22nd, 1979 [and] would end August 27th, 1979" (which was actually 158, rather than 160, days later). The State again requested a continuance to locate the missing witness in the Williams case. The trial court continued the case until the next day for a hearing on the State's efforts to locate the witness.
On July 20, after hearing testimony from two investigators for the State, the trial court concluded that the State had not exercised due diligence in attempting to locate the witness. The State reiterated its earlier argument that the 160-day statutory term in the Williams case began to run when defendant's attorney demanded trial and would not expire until August 27, 1979. On the State's motion, the trial court continued the case to August 27, 1979. On that date, the trial court denied the State's motion for another continuance, concluding that the State had not exercised due diligence and that it had not established any basis for the court to believe that the sought-after witness would be produced within a definite or a reasonable time. The judge then dismissed the indictment in the Williams case based upon the sixth and fourteenth amendments to the United States Constitution.
The appellate court affirmed, concluding that dismissal of the indictment was proper under section 103-5(e) of the Code. It is the appellate court's interpretation ...