Appeal from the Circuit Court of Du Page County; the Hon.
Charles R. Norgle, Judge, presiding.
JUSTICE SCHNAKE DELIVERED THE OPINION OF THE COURT:
In this case, the State appeals the order of the circuit court of Du Page County dismissing the charges of theft and burglary to a motor vehicle against the defendant, Michael L. Scotti, for violation of his right to a speedy trial. The State acknowledges that more than 160 days have expired since the defendant requested a speedy trial, but it asserts that a significant portion of the delay was attributable to the defendant.
Charges against the defendant were initiated by complaint on March 23, 1983, and a preliminary hearing was held May 12. The trial court found no probable cause regarding the charge of theft, but did find probable cause concerning the charge of burglary to a motor vehicle. The defendant filed a written demand for speedy trial that same date, and the cause was continued to May 23 for arraignment. Defense counsel was absent from court on May 23 due to the hospitalization of a family member and requested a continuance. The court postponed the arraignment to June 8, 1983.
On June 8, defense counsel was again not present, but since the State was not ready to file an information, it moved for a continuance to June 20. The defendant was arraigned on June 20, and the court set August 1 for additional motions and August 16 for trial. When the case was called on August 16, defense counsel was again not present, and the court, noting that it was already engaged in a jury trial, set a new trial date of November 1. When asked by the assistant State's Attorney if that was on the court's motion, the court responded that it was.
The defendant, having been incarcerated on an unrelated burglary charge, was not "writted in" for trial on November 1, and the case was continued to November 14, 1983. On that date the defendant was present with counsel, but the assistant State's Attorney assigned to the case was involved elsewhere in trial. An alternate assistant State's Attorney did note that a speedy trial demand was on file and defense counsel, after reviewing the file, observed that the speedy trial term had expired 10 days earlier on November 4. The defendant thereupon moved for dismissal on the grounds that he had been denied a speedy trial.
At the hearing on the defendant's motion to dismiss, defense counsel stated that he had arrived 20 minutes late on August 16, and had notified the State at that time that he was ready to proceed. The State, however, told him that the complainant was not present and had not been subpoenaed. The court then continued the hearing to November 21, 1983, and ordered a transcript of the events of August 16.
On November 21, the defendant was not present because the Department of Corrections had inadvertently failed to respect the court's writ and the hearing was continued to December 6, 1983. On December 6, the matter was heard and the defendant argued that the record of August 16 spoke for itself where the court stated:
"THE COURT: Are you represented by an attorney?
DEFENDANT SCOTTI: Tom Jordan.
THE COURT: Have you talked to him this morning?
DEFENDANT SCOTTI: Not this morning, no.
THE COURT: Your case is set for jury trial ...