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People v. Hubbard

OPINION FILED OCTOBER 9, 1986.

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

v.

DAVID J. HUBBARD, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Montgomery County; the Hon. Mark M. Joy, Judge, presiding. JUSTICE WELCH DELIVERED THE OPINION OF THE COURT:

Following a jury trial in Montgomery County on December 20, 1983, the defendant was found guilty of two counts of driving under the influence of alcohol. In the defendant's first appeal in this case, the issue was whether failure of the public defender to move for discharge under the speedy trial provision of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1983, ch. 38, par. 103-5) when 160 days passed without any delay occasioned by defendant denied defendant effective assistance of counsel. In a disposition filed pursuant to Supreme Court Rule 23 (87 Ill.2d R. 23), this court remanded the cause for determination on whether any delay in bringing defendant to trial was attributable to defendant. (People v. Hubbard (1985), 131 Ill. App.3d 1175.) Following remand, the circuit court held a hearing on July 8, 1985. The circuit court entered an order on July 12, 1985, finding that the time elapsed between September 2, 1983, and November 2, 1983, was chargeable to the defendant and that the statutory period did not run prior to the time defendant was brought to trial. From that order, defendant appeals to this court a second time. In this appeal defendant raises the issues of whether he was denied effective assistance of counsel when counsel failed to file a motion for discharge based on his right to speedy trial and whether the trial court abused its discretion in finding that the delay between September 2 and November 2 was attributable to defendant. We affirm.

On May 31, 1983, defendant was charged by information with two counts of driving under the influence of alcohol. On June 13, 1983, the public defender entered her appearance and filed a written demand for a speedy trial. The trial court arraigned defendant on June 22, 1983, set pretrial for September 2, 1983, and set a jury trial for September 22, 1983. During the pretrial hearing of September 2, the following exchange took place:

"The Court: 83-TR-2950 and 51, People versus David Hubbard.

Ms. Zeman [public defender]: Your Honor, there is no plha [sic] to present to the court. We're ready to proceed with a trial on this case.

The Court: Set on the same date, I guess, wasn't it?

Clerk: Yes.

Ms. Zeman: Is there something the court does about setting the priority as to the cases that go that day?

The Court: You will have to talk to the Judge who is going to do the trial work.

Ms. Zeman: Okay.

Mr. Graham: [Assistant State's Attorney]: Hopefully, we'll be trying them from the oldest case to the newest case. My guess is this is not one of the oldest ones that is going to be tried on the 20th. I doubt if it will actually go on the 20th.

The Court: You want a specific date is that what you want?

Ms. Zeman: That would be helpful since that is part of the pretrial process. That is advantageous at this point.

The Court: We can set them first on the next one, can't we? We will do that. How will that be?

Mr. Graham: That is all right. The only problem I see if there are other jury trials set on that date might ...


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