Appeal from the Circuit Court of Du Page County; the Hon. John
J. Bowman, Judge, presiding.
JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:
Defendant, Alvin Goins, was found guilty in a jury trial of residential burglary (Ill. Rev. Stat. 1983, ch. 38, par. 19-3) and was sentenced to a 5 1/2-year term of imprisonment.
Two issues are raised on appeal: (1) whether the trial court erroneously denied defendant's pretrial motion for discharge under the 120-day statutory speedy-trial term; and (2) whether the residential burglary statute is unconstitutional, and if so, renders defendant's conviction void.
Following his indictment in the circuit court of Du Page County for residential burglary of a dwelling located at 2330 Alder Court, Aurora, defendant filed a petition for discharge pursuant to section 103-5(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1983, ch. 38, par. 103-5(a)). He alleged that he was placed in custody for the residential burglary charged on July 7, 1983, that he had not been released on bond or tried for 120 days thereafter, and that the delay was not attributable to him.
The State and the defendant entered into a stipulation that defendant was arrested in Kane County on July 7, 1983, and charged in Kane County with committing residential burglary of a dwelling at 2330 Alder Court, Aurora. He remained in the custody of Kane County until November 30, 1983, when that charge was nol-prossed and he was arrested and taken into custody by Du Page County authorities following his indictment for the same offense in Du Page County. It was further agreed that the residence burglarized was one-quarter mile inside the Du Page County line and that the residential burglary occurred in Du Page County and not in Kane County. Defendant remained incarcerated in Du Page County until January 5, 1984, when an oral motion for his discharge was made. The trial court denied the motion for discharge finding that the circuit court of Du Page County did not have jurisdiction to try the offense until November 30, 1983, and that 120 days had not elapsed from that time until January 5, 1984, the date the motion for discharge was made.
The cause proceeded to a jury trial, and the defendant was found guilty of residential burglary as charged in Du Page County. It is unnecessary to set forth the evidence at trial, as the two issues raised on appeal do not pertain to the trial proceedings.
• 1 One of defendant's contentions on appeal, not raised below, is that the residential burglary statute (Ill. Rev. Stat. 1983, ch. 38, par. 19-3) is unconstitutional. The same arguments advanced in support of this position have been decided by this court in People v. Sturlic (1985), 130 Ill. App.3d 120, 474 N.E.2d 1, where we found the residential burglary statute was not unconstitutional. Thus, we adhere to that decision and again reject the arguments made against the constitutionality of the statute. *fn1
• 2 The second issue raised on appeal is whether defendant was brought to trial within 120 days after he was taken into custody, as required under the 120-day statutory speedy-trial term prescribed in section 103-5(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1983, ch. 38, par. 103-5(a)).
Section 103-5(a) provides:
"Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant * * *." (Emphasis added.)
A person not tried in accordance with section 103-5(a) shall be discharged from custody (Ill. Rev. Stat. 1983, ch. 38, par. 103-5(d)) and is entitled to a dismissal of the charge. People v. Richards (1980), 81 Ill.2d 454, 459, 410 N.E.2d 833.
Essentially, defendant maintains that the 120-day speedy-trial term began on July 7, 1983, when he was first taken into custody in Kane County for the same offense for which he later remained in custody in Du Page County. He further contends that where a defendant is charged with the offense for which he is prosecuted, he may be "in custody" anywhere in the State for the purposes of the application of the 120-day statutory speedy-trial term. Thus, defendant argues that more than 120 days elapsed, not attributable to any delay caused by him, from the time of his original incarceration in Kane County on July 7, 1983, until his motion for discharge was made on January 5, 1984.
The State contends that the 120-day statutory speedy-trial term commenced on November 30, 1983, the date he was taken into custody on the indictment returned in Du Page County. Citing People v. Rogers (1953), 415 Ill. 343, 114 N.E.2d 398, the State argues that the circuit court of Du Page County was the only court that had "jurisdiction" to adjudicate this residential burglary offense within the meaning of the speedy-trial statute. As the circuit court of Du Page County did not acquire "jurisdiction" until November 30, 1983, the State maintains that the 120-day term was not violated. Alternatively, the State contends that even if defendant's interpretation of the statute is correct, the record discloses delays attributable to the defendant which toll the running of the 120-day term. The trial judge did not decide this alternative contention in his denial of the motion for discharge and, in view of the result which follows, we also need not address this argument.
People v. Rogers (1953), 415 Ill. 343, 114 N.E.2d 398, relied on by the State, is quite similar factually to the case at bar. In Rogers, the defendant was originally arrested on December 12, 1951, and indicted for rape in Cook County. When later investigation determined that the exact location of the assault was in Lake County, the Cook County indictment was nol-prossed and defendant, who had remained in custody, was transferred to the custody of Lake County on February 15, 1952, where he was charged and subsequently tried on June 10, 1952. Defendant's motion for discharge was denied by the trial court, and he appealed contending that the four ...