APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
517 N.E.2d 1114, 164 Ill. App. 3d 407, 115 Ill. Dec. 428 1987.IL.1931
Appeal from the Circuit Court of Du Page County; the Hon. Robert A. Nolan, Judge, presiding.
JUSTICE NASH delivered the opinion of the court. LINDBERG, P.J., and REINHARD, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE NASH
In these consolidated appeals we consider whether a trial court is authorized to require defendant's attorney in a criminal case to advise the court of counsel's calculation of the running of the term time under the speedy trial requirements. Attorneys Carol Anfinson and Gary Johnson, defendant's counsel, appeal from an order of the circuit court holding them in direct civil contempt of court for refusing to do so, and placing them in the custody of the sheriff.
The issue to be considered arose during criminal proceedings brought against defendant, Stephen Buckley, who was charged with murder, kidnapping and rape by an indictment returned on March 9, 1984. Defendant was initially tried before a jury, together with two codefendants; verdicts of guilty were returned by the jury as to the codefendants, but it was unable to agree to a verdict in Buckley's case and a mistrial was declared on February 22, 1985. In his first trial, defendant Buckley was represented by retained counsel, attorneys Gary Johnson and Clifford Lund, who withdrew after the mistrial, and the court appointed the public defender of Du Page County to represent defendant. Deputy public defender Carol Anfinson was assigned and attorney Gary Johnson entered his appearance as co-counsel on a pro bono basis.
In preparation for the new trial, to be held before a different Judge than was the first trial, defendant's attorneys renewed several motions made earlier and filed other new motions. On September 19, 1986, when the second trial was to commence, the State disclosed a newly discovered witness and defendant moved, alternatively, to bar the witness from testifying or to continue the trial for a six-month period. The trial court denied the motion to bar the witness and continued the case to October 30, 1986, for the setting of a new trial date. Defendant's attorney Johnson advised the court he did not believe the resultant delay in trial was attributable to defendant.
On October 30 the defense answered ready for trial and the court inquired of all counsel as to a trial date. A Discussion ensued as to whether the defendant or State was chargeable for delays in bringing the case to retrial. Defendant's counsel advised the court they could be ready on November 5; however, the Judge considered it would take a substantial amount of time to impanel a jury in the case, and he wanted to avoid, if possible, having the trial extend through the Christmas holidays. The court thereupon set January 14, 1987, as a tentative trial date and ordered that on November 5, 1986, the People and defendant each provide the court with their respective calculations as to the running of the term time in the case.
On November 5, 1986, defendant appeared before the court represented by attorney Johnson. The assistant State's Attorney advised the court, as ordered, that the People calculated that if the trial were to commence on January 14, 1987, as tentatively set, 87 days of delay would be chargeable to the State and the remainder would be attributable to the defendant. Defendant's attorney advised the court that he considered the State's calculation as arguable, but did not want to do so at that time. Attorney Johnson stated he did not wish to comment either way on the State's calculation, as the number of days which had passed under the speedy trial provisions were a matter of record which could be viewed by the court or prosecution, and if defendant commented he may waive issues. When Attorney Johnson continued to refuse to advise the court in the matter, the Judge warned counsel of the possibility of contempt and directed the defense to provide the court with its calculation of the running of the term time within seven days.
The matter came back before the court on November 12, 1986, at which time both of defendant's attorneys appeared and requested that the Judge reconsider the order directing them to compute the term time. The attorneys stated that the order was improper and unauthorized, citing People v. Cunningham (1979), 77 Ill. App. 3d 949, 396 N.E.2d 876, and People v. Brown (1981), 94 Ill. App. 3d 609, 418 N.E.2d 1093, aff'd (1982), 92 Ill. 2d 248, 442 N.E.2d 136, in support of their argument that it was the duty of the State to bring defendant to a timely trial and the defense had no duty to assist the court in determining the speedy trial requirements of the case in setting a trial date.
The trial Judge noted that a court has broad discretionary powers relating to the progress of cases pending before it, and that the case presented trial scheduling problems because of the approaching holidays, the nature of the case, and that its attendant publicity offered problems in the selection of an impartial jury and the possibility it must be sequestered. The Judge stated that the defense had been ordered to advise the court of defendant's computation of the term time to assist the court in managing its calendar. The Judge declined to reconsider its order to both counsel, and defendant's attorneys then respectfully declined to comply with it. Attorneys Anfinson and Johnson were found to be in direct civil contempt of court and were remanded to the custody of the sheriff until compliance. Appeal bonds were set by the court, which contemnors posted that day, and they filed their notices of appeal on November 18, 1986, from the orders directing counsel to submit their computation of the running of the speedy trial requirements in the case and from the order finding them to be in direct civil contempt of the court.
On November 19, 1986, contemnors appeared before the trial court, with counsel, and again declined to comply with the order. The Judge stated he had reviewed the criminal proceedings from the clerk's records and had determined that the State's calculation of the term time was accurate and that the retrial of defendant Buckley would commence on January 14, 1987. The court found that the civil contempt matter was then moot and discharged contemnors. It also appears from the briefs of the parties to this appeal that the pending criminal charges against defendant Buckley were nol-prossed subsequent to the contempt proceedings which are the subject of these appeals.
We consider first the State's argument that the contempt issue raised by these appeals is now moot because the trial court ultimately discharged the contempt and because the criminal prosecution ...