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People v. Sherwood

OPINION FILED MARCH 3, 1986.

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

v.

JAMES MICHAEL SHERWOOD, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cumberland County; the Hon. Richard E. Scott, Judge, presiding.

JUSTICE SPITZ DELIVERED THE OPINION OF THE COURT:

On January 4, 1985, defendant was arrested and taken into custody, and was thereafter charged by complaint in this cause, Cumberland County No. 85-CF-1 (No. 85-CF-1), with the offense of unlawful possession of between 30 and 500 grams of a substance containing cannabis. (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 704(d).) At the time he was arrested and taken into custody in this cause, he was on bond for a separate aggravated battery offense, Cumberland County No. 84-CF-21 (No. 84-CF-21). The record shows that, at the time of defendant's arrest in this cause, there were also charges pending against him in other counties, including Effingham County, Coles County, and Moultrie County; warrants for his arrest were outstanding on several of these charges. Defendant's bond in this cause was set at $25,000 and, on defendant's motion, was later reduced to $15,000 on February 26, 1984. In reducing defendant's bond, the trial judge stated that as long as defendant remained in custody in No. 85-CF-1, he was entitled to have the $500 bond posted in No. 84-CF-21 returned to him, if he chose; however, if the bond in No. 84-CF-21 was returned to him, and he was thereafter released on bond in No. 85-CF-1, he would again have to post the $500 bond in that cause, as well as the $15,000 bond in this cause.

The defendant remained in custody in this cause, No. 85-CF-1; apparently, the State did not file a petition to revoke defendant's bond in No. 84-CF-21.

Defendant was scheduled to go to trial in No. 84-CF-21 on March 28, 1985. On March 26, 1985, he entered a plea of guilty in that cause.

On May 13, 1985, defendant filed a motion to dismiss No. 85-CF-1 for want of a speedy trial under section 103-5(a) of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1983, ch. 38, par. 103-5(a)). The motion alleged that 130 days had passed since defendant was arrested and taken into custody in this cause. The motion acknowledged that a delay of seven days of this period was properly attributable to the defendant.

After a hearing on May 14, 1985, the trial court agreed with the State that defendant fell instead within the language of section 103-5(e) (Ill. Rev. Stat. 1983, ch. 38, par. 103-5(e)), the simultaneous custody provision; and that the State was therefore permitted to try the cause within 160 days from the date on which judgment was rendered relative to the first charge prosecuted, i.e., No. 84-CF-21.

On May 16, 1985, defendant's bond in this cause was reduced to $5,000, the bond was posted, and he was released on bail. Defendant moved for reconsideration of his motion to dismiss for want of a speedy trial. The trial court denied the motion for reconsideration. After a bench trial, defendant was convicted and sentenced to two years' probation, with conditions that he serve 132 days in jail with credit for 132 days served, pay a fine of $150 with credit of $5 a day for time served, and ordered to pay $145 court costs. This appeal followed.

The single issue on appeal is whether the trial court erred in its interpretation of section 103-5 of the Code, and thereby erred in denying defendant's motion to dismiss this cause because he was not brought to trial for the offense within 120 days from the date he was taken into custody on it.

Section 103-5 of the Code provides in pertinent part:

"(a) 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,

by an examination for competency ordered pursuant to Section 104-2 of this Act,

by a competency hearing,

by an adjudication of incompetency ...


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