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People v. Mccarrey

OPINION FILED FEBRUARY 15, 1984.

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

v.

NORMAN H. MCCARREY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Champaign County; the Hon. John R. DeLaMar, Judge, presiding.

JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

After a bench trial defendant Norman McCarrey was convicted of driving under the influence of alcohol. (Ill. Rev. Stat. 1981, ch. 95 1/2, par. 11-501.) On appeal he alleges that he was not accorded a speedy trial within 160 days of his demand, as required by the provisions of Supreme Court Rule 505 (87 Ill.2d R. 505), and that the trial court therefore erred in denying his motion to dismiss the charge against him. We agree and therefore reverse the judgment of the circuit court of Champaign County.

Defendant was charged with driving under the influence of alcohol by means of a traffic ticket issued on November 19, 1981. On November 23, 1981, defendant's counsel filed a written entry of appearance on behalf of defendant, entering a plea of not guilty and requesting trial by jury. Defendant's counsel effected this appearance by use of a printed form supplied by the Champaign County clerk's office. The operative paragraph read as follows:

"REQUEST FOR JURY TRIAL

(OPTIONAL)

The above-named defendant, by his/her undersigned attorney, hereby demands trial by jury. (This demand by itself is a demand for immediate or speedy trial.)"

The State suggests that the word "not" was deleted from the parenthetical sentence as it appears on the form as supplied by the clerk's office, whereunder the parenthetical statement is that the demand by itself is not a demand for immediate or speedy trial.

After the filing of the entry of appearance, plea of not guilty and request for jury trial, the cause was allotted for jury trial docket call on January 27, 1982. On that date, Judge DeLaMar reset the cause for docket call in February 1982. The case apparently appeared on Judge Townsend's docket call in February and was allotted for a pretrial conference on March 8, 1982. On that date, an information charging the offense was filed and the cause was continued on the defendant's motion, over the State's objection, until the April 1982 trial term. Thereafter, on the State's motion, the cause was reallotted for trial during the June 1982 term. Nothing further appears to have transpired in the case until May 4, 1983, when defendant filed a motion to dismiss the cause on the ground that he had not been afforded a speedy trial despite his demand. After argument by counsel on May 5, 1983, Judge DeLaMar denied defendant's motion to dismiss the cause. On May 10, 1983, defendant was convicted and sentenced on the offense charged. From this judgment defendant appeals.

Supreme Court Rule 505 provides in pertinent part:

"Upon timely receipt of notice that the [recipient of a traffic ticket] intends to plead `not guilty,' the clerk shall set a new appearance date not less than 7 days nor more than 49 days after the original appearance date set by the arresting officer, and notify all parties of the new date and the time for appearance. If the accused demands a trial by jury, the trial shall be scheduled within the time prescribed by section 103-5 of the Code of Criminal Procedure of 1963, as amended (Ill. Rev. Stat. 1979, ch. 38, par. 103-5)." (Emphasis added.) (87 Ill.2d R. 505.)

The relevant portions of section 103-5 of the Code of Criminal Procedure of 1963 provide:

"(b) Every person on bail or recognizance shall be tried by the court having jurisdiction within 160 days from the date defendant demands trial unless delay is occasioned by the defendant * * *.

(f) Delay occasioned by the defendant shall temporarily suspend for the time of the delay the period within which a person shall be tried as prescribed [by subparagraph (b)] of this Section and on the day of expiration of the delay the said period shall continue at the point at which it was suspended." (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 38, par. 103-5(b), (f).)

We note that while Rule 505 is framed in terms of a demand for trial by jury, section 103-5(b) ...


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