APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
515 N.E.2d 390, 162 Ill. App. 3d 476, 113 Ill. Dec. 581 1987.IL.1605
Appeal from the Circuit Court of Moultrie County; the Hon. Worthy B. Kranz, Judge, presiding.
JUSTICE KNECHT delivered the opinion of the court. GREEN and LUND, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KNECHT
Defendant was convicted of aggravated assault in violation of section 12-2(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 12-2(a)(1)) and sentenced to 364 days' imprisonment. He was also convicted of one count of simple assault but was not sentenced on that conviction and was acquitted of several other charges. Defendant appeals, contending his constitutional right to a speedy trial was violated and he was further denied effective assistance of counsel when trial counsel failed to file a motion for discharge on the basis his statutory right to a speedy trial was violated.
The chronology of events is straightforward. On March 10, 1986, informations were filed charging defendant with aggravated assault and unlawful use of a weapon after defendant entered the office of the former State's Attorney of Moultrie County and threatened him, in the presence of his secretary, with bodily harm while in possession of a dangerous weapon, an ax. An arrest warrant was issued but not served upon defendant. At the time of the offense defendant was on parole and his parole officer was notified.
On March 23, 1986, defendant turned himself in to the Moultrie County sheriff's department, where he was held overnight before being transported to the Graham Correctional Center in Hillsboro on the basis of the parole violation. His parole was revoked and he remained in the custody of the Illinois Department of Corrections until July 25, 1986, to serve out his parole term.
On July 15, 1986, the State's Attorney of Moultrie County filed a petition for writ of habeas corpus, which the court issued, directing the warden of the Graham Correctional Center to bring defendant before the Moultrie County circuit court for prosecution on the pending charges. On July 25, 1986, the Moultrie County sheriff served defendant with the arrest warrant previously issued by the court on March 10, 1986.
On July 30, 1986, defendant appeared in Moultrie County and a public defender was appointed to represent him. On August 5, 1986, a preliminary hearing was held at which time defendant was bound over for trial. The jury trial commenced and ended on November 5, 1986.
Defendant contends his constitutional right to a speedy trial was violated because the State failed to immediately arraign him after his arrest for these charges, leaving him unrepresented by counsel and ignorant of his rights for the first 4 1/2 months of his incarceration. He maintains that because the State knew of his whereabouts at all times and had the procedural means to bring him into court to answer the charges, the failure to try him until 240 days after the informations were filed was an unreasonable and prejudicial delay requiring dismissal of the charges.
In determining whether a delay in trial has breached constitutional limitations, a four-part test weighing the conduct of both the defendant and the prosecution is used. (Barker v. Wingo (1972), 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182.) The four factors to be considered are (1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of his right to a speedy trial, and (4) prejudice to the defendant. The right to a speedy trial under the constitutions of the United States (U.S. Const., amend. VI) and of Illinois (Ill. Const. 1970, art. I, § 8) is not subject to any precise standard of time within which the accused must be tried but rather is dependent upon the circumstances of the particular case. Barker, 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182.
We note, at the outset, defendant failed to raise any question concerning either a constitutional or statutory violation of his right to a speedy trial in the proceedings below. Issues not raised in the trial court, including constitutional matters, are generally considered waived on appeal (People v. Amerman (1971), 50 Ill. 2d 196, 279 N.E.2d 353), and we consider that we would be fully justified in applying the waiver rule here. Nevertheless, we do not believe defendant has established any violation of his rights upon consideration of the merits.
Initially defendant argues the 240-day period between the filing of the informations and trial is inordinate and presumptively prejudicial. Defendant cites section 103-5(a) of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1985, ch. 38, par. 103-5(a)) for the proposition that the State was required to try him within 120 days from the filing of the information. We disagree. For purposes of State law, the controlling speedy trial statute was section 103-5(b) of the Code (Ill. Rev. Stat. 1985, ch. 38, par. 103-5(b)) as incorporated in the intrastate detainers statute (Ill. Rev. Stat. 1985, ch. 38, par. 1003-8-10). Defendant was properly committed to the Department of Corrections because of his parole violation stemming from the underlying charges. As such, section 3-8-10 required that he make a demand for trial before the 160-day term provided by section 103-5(b) of the ...