Appeal from the Circuit Court of Will County; the Hon. Michael
A. Orenic, Judge, presiding.
JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
The defendant, Lester C. Lykes, was convicted following a bench trial of armed violence. On appeal, the defendant contends that the trial court erred in denying his motion for discharge under the speedy-trial statute. The defendant also asserts that he was not proved guilty beyond a reasonable doubt. We affirm.
The defendant was arrested for the instant offense and incarcerated in the Will County jail on March 14, 1983. A complaint was filed the next day. On March 21, 1983, the defendant was transferred to the Department of Corrections for violation of supervised release based on the instant offense. Despite the hold placed on the defendant for his violation, the hearing to revoke his supervised release was not held until after the defendant's instant conviction.
On April 7, 1983, a hearing was held on the question of the appropriate speedy-trial term. The defendant asserted that the State was required to try him in 120 days. The State responded that the appropriate term was 160 days because the defendant was in the custody of the Department of Corrections. The trial court found that the State had 160 days in which to try the defendant.
On April 8, 1983, the defendant filed his speedy-trial demand. On July 27, 1983, the defendant filed his motion for discharge. After a hearing, the trial court denied the motion for discharge on August 1, 1983. The defendant's trial commenced on August 2, 1983.
The defendant reasserts on appeal that, because he was in custody, the State was required to bring him to trial within 120 days. Because the State did not try him within this 120-day period, the defendant urges that the trial court erred in denying his subsequent motion for discharge.
A resolution of the defendant's speedy-trial issue requires a consideration of the speedy-trial statute in conjunction with the Intrastate Detainer Act. An accused's right to a speedy trial is found in section 103-5 of the Code of Criminal Procedure of 1963. (Ill. Rev. Stat. 1983, ch. 38, par. 103-5.) Section 103-5(a) provides that "[e]very person in custody in this State for an alleged offense" shall be tried within 120 days. Section 103-5(b) provides that persons on bail or recognizance shall be tried "within 160 days from the date defendant demands trial * * *." Failure to try an accused within the statutory time frame results in the discharge of the accused.
However, the Intrastate Detainer Act makes the provisions of 103-5(b) applicable to some defendants incarcerated in this State. Under the terms of section 3-8-10 of the Uniform Code of Corrections, titled Intrastate Detainers and hereafter referred to as the Act, section 103-5(b) applies to a person "committed to any institution or facility or program of the Illinois Department of Corrections" who has an untried complaint or indictment pending against him. Ill. Rev. Stat. 1983, ch. 38, par. 1003-8-10.
Thus, if an accused is in custody for an alleged offense under section 103-5(a), he must be tried within 120 days. If, instead, the accused is committed to the Illinois Department of Corrections (hereafter IDOC) with an untried complaint or indictment pending, he must be tried within 160 days. The State and the defendant agree that the defendant was tried in more than 120 but less than 160 days from the date of his arrest. The issue before us, then, is whether the defendant was committed to the IDOC for violation of parole while the instant complaint was pending, or whether he was actually in custody for the instant offense although physically present in an IDOC facility.
The defendant argues that although he was physically in the custody of the IDOC, he was actually held by the State for the instant offense. The defendant bases his argument on the fact that his parole violation hearing was held only after his conviction on the instant charges. The defendant contends that, because the proper procedures for revoking his supervised release and committing him to the IDOC were not followed, he was not committed to IDOC and effectively remained in custody for the instant offense.
The defendant relies on the decisions in People v. Patheal (1963), 27 Ill.2d 269, 189 N.E.2d 309, People v. Burchfield (1978), 62 Ill. App.3d 754, 379 N.E.2d 375, and People v. Powell (1976), 43 Ill. App.3d 934, 357 N.E.2d 725, in support of his argument that he was in custody for the alleged offense and not the IDOC. Each of these cases is, however, distinguishable from the case at bar.
In People v. Patheal (1963), 27 Ill.2d 269, 189 N.E.2d 309, the defendant was arrested on August 20, 1959, on a warrant for armed robbery. On December 8, 1959, the State made an ex parte motion to dismiss the charge. The magistrate agreed to dismiss but no order dismissing the charge was ever entered. On December 11, Patheal was taken to the Menard penitentiary under a warrant for violation of his parole. He was then indicted for armed robbery on December 15, 1959. When Patheal was released from Menard on January 21, 1960, he was arrested under the indictment. He filed his motion for discharge under the speedy-trial statute on February 23, 1960.
The court in Patheal found that the defendant was denied his right to a trial within 120 days. In so finding, the court rejected the State's argument that he could not be in the custody of the county because he was in the custody of the State while on parole and that custody did not terminate until his release on January 21, 1960. The court found instead that Patheal was in the custody of the county on the pending charge from August 20, 1959, to December 11, 1959.
The defendant's reliance on Patheal is misplaced for several reasons. First, the Intrastate Detainer Act had not yet been enacted. Thus, there was no statutory speedy-trial provision covering persons "committed to an institution facility or program" of the IDOC. The court was limited to consideration of the predecessor to section 103-5(a), and was never required ...