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People v. Swafford

OPINION FILED MAY 17, 1984.

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

v.

DAVID

v.

SWAFFORD, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Lee County; the Hon. James E. Bales, Judge, presiding.

JUSTICE VAN DEUSEN DELIVERED THE OPINION OF THE COURT:

After a bench trial, the defendant, David Swafford, was convicted of armed robbery (Ill. Rev. Stat. 1981, ch. 38, par. 18-2(a)) and was sentenced to a 25-year term of imprisonment. On appeal, the defendant contends that his statutory right to a speedy trial (Ill. Rev. Stat. 1981, ch. 38, par. 103-5(a)) was violated because he was not tried within 120 days from the date he was taken into custody for the instant offense.

On June 24, 1982, a warrant was issued in Lee County, Illinois, for the arrest of the defendant for armed robbery. A complaint, which was filed the next day, charged Swafford with committing an armed robbery in Dixon, Illinois. The arrest warrant was filed in Lee County on June 29, 1982. The "Return of Service" portion of the warrant stated that Detective Robert Short had executed the warrant by arresting the defendant.

The Dixon police department received a telephone call on June 23 or 24, 1982, from the sheriff's department in Iroquois County, Illinois, conveying the message that the defendant had been arrested for burglary and was being held in custody in that county. Detective Robert Short of the Dixon police department informed the Iroquois sheriff's department of the existing Lee County arrest warrant and advised the sheriff's department that the Dixon police were placing the warrant against Swafford as a detainer. Short and Detective Kavanaugh traveled to Iroquois County several days later and informed Swafford that he was under arrest.

On July 13, 1982, Iroquois County voluntarily relinquished custody of the defendant to Lee County. On the following day, the sheriff of Lee County produced the defendant in open court in the present case. Swafford was given a copy of the complaint and was advised of the nature of the charge, the possible penalties, and his constitutional rights. The court also appointed the public defender to represent the defendant and then set bond. The cause was continued to July 19, 1982, for a preliminary hearing, and Swafford was remanded to the custody of the sheriff of Lee County.

The defendant appeared in court as scheduled on July 19. The court conducted the preliminary hearing and made a finding of probable cause. The cause was continued to July 26, 1982, for arraignment, and the defendant was remanded. The State filed the information two days after the preliminary hearing, on July 21.

On July 20, 1982, the defendant filed a motion for discovery. Six days later, on July 26, the court conducted the arraignment. The defendant entered a plea of not guilty and requested a jury trial; the court continued the matter until August 9, 1982. During the interim, the State filed its own motion for discovery and its answer to the defendant's earlier discovery motion. On August 9, the cause was continued again, until August 20, 1982. On August 16, the defendant filed an answer to the State's motion for discovery.

On August 11, 1982, the defendant was returned to the custody of Iroquois County. The burglary prosecution in Iroquois County was concluded on November 22, 1982, when Swafford was sentenced to a six-year term of imprisonment as a result of his burglary conviction.

No further action was taken in the present case until December 16, 1982, when the court, in response to the State's petition, issued a writ of habeas corpus ad prosequendum, which directed the warden of the Pontiac Correctional Center to produce the defendant for a hearing on December 21, 1982. Swafford appeared in court on that date pursuant to the writ, and the court continued the cause to March 21, 1983, for a jury trial.

On May 18, 1983, the defendant filed a pro se motion to dismiss the cause for violation of his statutory right to a speedy trial under section 103-5(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 103-5(a)). The motion to dismiss was presented and heard three days later, after the defendant: (1) appeared in court pursuant to a second writ of habeas corpus ad prosequendum, which the trial court issued as a result of the State's petition, and (2) waived his right to a jury trial.

After hearing arguments relative to the motion to dismiss, the court denied the defendant's motion, ruling that the speedy-trial term had not begun to run until the proceedings in Iroquois County were terminated on November 22, 1982, and that less than 120 days had passed since then.

That same day the cause proceeded to a bench trial based upon stipulated evidence. Based on the facts to which the parties had stipulated, the court found the defendant guilty of armed robbery and entered judgment on that finding. After holding the requisite sentencing hearing on May 26, 1983, the court below sentenced the defendant to a 25-year term of imprisonment.

The defendant filed a post-trial motion that same day in which he alleged, among other matters, that the trial court erred in denying his motion to dismiss the cause for a violation of his statutory right to a speedy trial; the trial court denied this post-trial motion. Thereafter, the defendant filed a timely notice of appeal.

The single issue before this court revolves around the question of when is a defendant deemed to be in custody for purposes of the commencement of the 120-day speedy-trial term (Ill. Rev. Stat. 1981, ch. 38, par. 103-5(a)) in circumstances where he faces ...


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