Appeal from the Circuit Court of Cook County; the Hon. James
M. Schreier, Judge, presiding.
PRESIDING JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
Defendant, Henry Lee Thomas, was convicted of murder on June 4, 1981, and sentenced to 40 years in the Illinois Department of Corrections. (Ill. Rev. Stat. 1983, ch. 38, par. 9-1(a)(1).) On appeal, defendant's conviction was reversed and the case was remanded for a new trial. (People v. Thomas (1984), 123 Ill. App.3d 857, 463 N.E.2d 832.) Prior to the retrial, defendant filed a motion for discharge pursuant to the speedy-trial provisions of the Code of Criminal Procedure of 1963. (Ill. Rev. Stat. 1983, ch. 38, par. 103-5(a).) The motion was granted on May 2, 1985. The State appeals contending the trial court abused its discretion in granting defendant's motion where (1) the delay in retrying the defendant was not attributable to the State, and (2) the defendant failed to assert his right to a speedy trial as mandated by the Interstate Detainer Act (Ill. Rev. Stat. 1983, ch. 38, par. 1003-8-10).
Our mandate reversing the defendant's murder conviction and remanding the cause for a new trial was filed with the circuit court of Cook County on November 9, 1984. The State's Attorney's and the Appellate Defender's offices received a copy of the cover letter, dated November 2, 1984, from the clerk of the appellate court to the clerk of the circuit court, notifying the parties the mandate had issued. On March 18, 1985, prior to receiving a new trial and while in custody, defendant filed a motion for discharge pursuant to the speedy-trial statute (Ill. Rev. Stat. 1983, ch. 38, par. 103-5(a)).
At the hearing on defendant's motion, the State called an assistant to the clerk of the circuit court, the supervisor of the criminal division of the clerk of the circuit court and an assistant State's Attorney to explain the procedures taken when an appellate mandate remanding a case for a new trial is filed. Testimony revealed that once a mandate is filed in the circuit court the clerk orders the case file from the supervising clerk of the criminal division. After receipt of the file, the case is placed on the call of the chief judge of the criminal division. In the instant case, the certified mandate was file stamped upon receipt and the case file was ordered. Despite bi-monthly requests from the clerk, the case file was not received, and the cause was not placed on the chief judge's call until March 19, 1985, the day after the defendant filed his motion to discharge.
The State and defendant entered into evidence the written stipulation set forth below:
"STIPULATIONS REGARDING THE FACTS ON DEFENDANT'S MOTION FOR DISCHARGE UNDER THE SPEEDY TRIAL ACT.
Now comes the People of the State of Illinois, by their attorney, Richard M. Daley, State's Attorney of Cook County, Illinois, through his assistants, and the Defendant, Henry Lee Thomas, by his attorneys, Marc Miller, Assistant Public Defender, and Bruce Mosbacher, Assistant Appellate Defender, and agree that the following are facts that may be relevant to this Court's ruling on the defendant's pending motion for discharge under the Speedy Trial Act.
1. Defendant's conviction for the offense of murder was reversed by the Illinois Appellate Court on April 26, 1984. The cause is remanded for a new trial.
2. Thereupon the People sought leave in the Illinois Supreme Court and leave was denied on October 2, 1984. The parties received a letter dated October 2, 1984, that the mandate from the Illinois Supreme Court would issue on October 23, 1984.
3. On November 2, 1984, a letter was sent from the Clerk of the Appellate Court to the Clerk of the Circuit Court. The letter stated that the mandate in this case was enclosed. A copy of that letter was received by the State's Attorneys Office and a copy was received by the State Appellate Defender's Office. Neither party received a copy of the mandate. The certified mandate bears the following file stamp:
`FILED - 4 NOV. 9 9 37 AM '84 CIRCUIT COURT OF COOK COUNTY, ILLINOIS MUNICIPAL DEPT. CRIMINAL DIVISION. ___________ Clerk MORGAN M. FINLEY'
5. The State's Attorney's Office was not served with notice of Defendant's Motion for Discharge under the Speedy Trial Act before March 18, 1985.
6. Defendant has been in custody as a result of the murder conviction since before November 9, 1984. He has been held in the Stateville ...