SUPREME COURT OF ILLINOIS
518 N.E.2d 1014, 119 Ill. 2d 259, 116 Ill. Dec. 193 1988.IL.46
Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Du Page County, the Hon. John J. Bowman, Judge, presiding.
JUSTICE WARD delivered the opinion of the court. JUSTICE CUNNINGHAM took no part in the consideration or decision of this case.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WARD
Following a jury trial in the circuit court of Du Page County, defendant, Alvin Goins, was convicted of residential burglary (Ill. Rev. Stat. 1983, ch. 38, par. 19-3), and sentenced to a term of 5 1/2 years. The appellate court affirmed (136 Ill. App. 3d 582), and we allowed the defendant's petition for leave to appeal (103 Ill. 2d R. 315(a)).
The defendant was taken into custody on July 7, 1983, in Kane County, and charged with the offense of residential burglary. An indictment was returned in Kane County upon the prosecutor's belief that the residence burglarized was in Kane County, but investigation disclosed it to be in Du Page County. While the defendant remained in custody in Kane County, an indictment was returned on November 22, 1983, in the circuit court of Du Page County charging him with the same offense as the Kane County indictment charged. The Kane County indictment was nol-prossed, and on November 30, 1983, the defendant was transferred to the custody of the sheriff of Du Page County. It was stipulated by the State's Attorney and the defendant that the defendant had been in custody since his arrest in Kane County on July 7, 1983.
On February 23, 1984, defendant moved for discharge pursuant to section 103-5(a) of the Code of Criminal Procedure, the so-called 120-day statute to insure a speedy trial (Ill. Rev. Stat. 1983, ch. 38, par. 103-5(a)). The motion stated that on July 7, 1983, he had been placed in custody for the offense charged, that he had not been released on bond or tried within 120 days and that the delay of trial was not attributable to him.
Section 103 -- 5(a) provides:
"(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, . . .." Ill. Rev. Stat. 1981, ch. 38, par. 103-5(a).
The circuit court denied the defendant's motion on March 12, 1984, holding that the circuit court of Du Page County did not have jurisdiction to try defendant for the offense until November 30, 1983, and as of the date of the motion to discharge the statutory period of 120 days had not elapsed. The defendant was convicted by a jury of residential burglary in Du Page County, and the appellate court affirmed. Citing People v. Rogers (1953), 415 Ill. 343, that court held that, because the circuit court of Du Page County was the only court having jurisdiction of the offense, the statutory time for trial did not commence until defendant was in custody in Du Page County.
The defendant contends that, because his incarceration in Kane County was for the same offense for which he was charged and convicted in Du Page County, the 120 days commenced on the date of his incarceration in Kane County. Citing People v. Fosdick (1967), 36 Ill. 2d 524, he argues that the statute must be liberally construed and that its salutary purpose may not be defeated by technical evasion. He urges that the dismissal of the Kane County indictment did not toll the running of the 120 days because he remained in custody on the identical charge.
Relying principally on People v. Rogers (1953), 415 Ill. 343, the State contends that the appellate court correctly held that the circuit court of Kane County was without jurisdiction of the offense and that the statutory period commenced to run when the defendant was incarcerated in Du Page County. The State argues that when the General Assembly enacted the Code of Criminal Procedure in 1961, it retained the language of the existing speedy-trial statute, which included the words "court having jurisdiction," which the Rogers court construed to mean the court with venue to try the case. It says that in retaining the language, the legislature showed it intended to retain the Rogers interpretation of the statute. (See Ill. Rev. Stat., ch. 38, par. 103-5, Committee Comments, at 58 (Smith-Hurd 1980).) The State argues that it is clear that the appellate court therefore correctly held that the legislature intended the words "court having jurisdiction" in the speedy-trial statute to mean the court where venue lies. 136 Ill. App. 3d 582, 586.
The Rogers court held that only the court in the county where the crime was committed has jurisdiction of the offense, which in effect equated jurisdiction with venue for purposes of the speedy-trial act. In Rogers, the defendant was indicted for rape and taken into custody in Cook County, but later was taken to Lake County, where the offense had been committed. The court rejected the defendant's ...