Appeal from the Circuit Court of Woodford County; the Hon.
William T. Caisley, Judge, presiding.
JUSTICE MILLER DELIVERED THE OPINION OF THE COURT:
The defendant was brought to Illinois from a Federal prison in Texas, where he was serving a 12-year sentence, to stand trial on a 15-count indictment. Because an important witness had disappeared in the meantime, however, the State nol-prossed the indictment and returned the defendant to Federal custody. When the witness was found, the State obtained a new indictment charging the same offenses as before and brought the defendant to Illinois again; both times the State used the Agreement on Detainers (Ill. Rev. Stat. 1981, ch. 38, par. 1003-8-9(a)) to compel the defendant's presence. Finding that the defendant had been in custody more than 120 days, a violation of section 103-5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 103-5), and that he was returned to Federal custody without having been tried on the first indictment, a violation of article IV(e) of the Agreement (Ill. Rev. Stat. 1981, ch. 38, par. 1003-8-9(a), art. IV(e)), the trial court discharged the defendant and dismissed the charges with prejudice. The State appeals, and we reverse and remand.
The defendant was indicted by a Woodford County grand jury July 24, 1980, in cause No. 80-CF-80 on 10 counts of murder, two counts of involuntary manslaughter, two counts of aggravated battery, and one count of concealment of a homicidal death, all stemming from the death of Walter Gardner on December 14, 1979. The prosecutor filed a detainer against the defendant at a Federal prison in Texas where the defendant was serving a sentence on an unrelated Federal charge. The State obtained custody of the defendant under the Agreement on Detainers, which both the United States and Illinois have adopted. The defendant was received in Woodford County October 19, 1980. On December 19, 1980, defendant was granted a continuance and the trial was continued to February 17, 1981, when the State was granted a continuance because an important witness could not be found; the trial was rescheduled for April 6, 1981.
The defendant was never tried on the indictment in 80-CF-80. On March 17, 1981, the State nol-prossed the indictment because the witness still could not be found. The prosecutor explained:
"Then I would move at this time to dismiss the case and make it perfectly clear on the record that it would be the People's intention to renew charges that are the substance of this case. If it is in another file or indictment, so be it, but it would be the People's intention to renew those charges if the witness * * * becomes available."
The trial judge dismissed the indictment and signed what was designated a "Nolle Pros Order"; he also signed an order remanding the defendant to Federal custody.
The defendant was indicted in the present case, cause No. 81-CF-83, October 29, 1981. Once again the defendant was charged with 10 counts of murder, two counts of involuntary manslaughter, two counts of aggravated battery, and one count of concealment of a homicidal death, all stemming from the death of Walter Gardner December 14, 1979. As before, the State obtained custody of the defendant under the Agreement on Detainers, and he was brought to Illinois April 9, 1982. The trial court heard the defendant's motion to dismiss on April 16, 1982. Agreeing with the defendant that both the speedy-trial provisions of section 103-5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 103-5) and the Agreement on Detainers had been violated, the trial court dismissed the charges.
• 1, 2 The speedy-trial provision of section 103-5(a) applies only to persons "in custody in this State" (Ill. Rev. Stat. 1981, ch. 38, par. 103-5(a)); thus, the time when the defendant was not in Illinois does not count toward the 120-day period allowed by that section. The record shows that in cause No. 80-CF-80 and in cause No. 81-CF-83, taken together, the defendant was in custody in Illinois fewer than 120 days, after deducting the delay chargeable to him by his motion for a continuance in cause No. 80-CF-80. Thus, even if the two indictments are considered a continuing prosecution, which would require that the speedy-trial clock be tolled and then resumed rather than begun anew (People v. Sanders (1980), 86 Ill. App.3d 457, 407 N.E.2d 951), the defendant's right under section 103-5(a) to a speedy trial was not violated.
The trial court also found that article IV(e) of the Agreement on Detainers (Ill. Rev. Stat. 1981, ch. 38, par. 1003-8-9(a), art. IV(e)) barred prosecuting the defendant in 81-CF-83. That provision says:
"If trial is not had on any indictment, information or complaint contemplated hereby prior to the prisoner's being returned to the original place of imprisonment pursuant to Article V(e) hereof, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice."
"At the earliest practicable time consonant with the purposes of this agreement, the prisoner shall be returned to the sending state." (Ill. Rev. Stat. ...