APPELLATE COURT OF ILLINOIS, THIRD DISTRICT
519 N.E.2d 52, 165 Ill. App. 3d 413, 116 Ill. Dec. 462 1988.IL.77
Appeal from the Circuit Court of Knox County; the Hon. Harry C. Bulkeley, Judge, presiding.
JUSTICE STOUDER delivered the opinion of the court. HEIPLE and WOMBACHER, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STOUDER
The trial court denied as untimely the defendant's motion to dismiss for failure to proceed to trial within 120 days. A jury subsequently convicted the defendant, Daniel H. Moats, of criminal damage to property and reckless conduct. (Ill. Rev. Stat. 1985, ch. 38, pars. 21-1(a), 12-5(a).) The defendant appeals only the court's denial of his motion to dismiss. Accordingly, we will relate only those facts necessary for a determination of that issue.
On May 22, 1986, the defendant was arraigned and pleaded not guilty to charges of criminal damage to property and reckless conduct. The defendant posted bond on June 9, 1986. After the defendant failed to appear at a pretrial conference, the trial court issued a warrant for his arrest. Following the defendant's arrest, trial was set for February 2, 1987.
On February 2, 1987, prior to commencement of his trial, the defendant filed a motion to dismiss alleging that he had been incarcerated on the pending charges for over 120 days without any delay on his part. Specifically, the defendant claimed that on August 24, 1986, he was arrested in Cook County on the Knox County warrant. He claimed that he was then held in the Cook County jail until December 12, 1986, when he was transferred to the Knox County jail.
The State objected to the motion as untimely, pointing out that the court's January 26, 1987, order setting the case for jury trial had specifically stated that all motions were to be set, noticed and resolved prior to trial and in accordance with the local circuit court rules. Rule G -- 1(4) of the General Rules of the Ninth Judicial Circuit provided that notice of the hearing of motions was to be mailed or personally delivered eight days prior to the hearing.
The defendant's attorney responded that he had not become aware of the grounds for the motion until the defendant mailed him a letter on January 25 or 26, 1987, containing the facts of his incarceration. The trial court, noting that the defendant would have been aware of his incarceration prior to January 25, denied the motion as being untimely filed.
On appeal, the defendant argues that the trial court erred in denying his motion to dismiss as untimely.
Section 103 -- 5(a) of the Code of Criminal Procedure of 1963 (the Code) provides as follows:
"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, by an examination for competency ordered pursuant to Section 104-2 of this Act, by a competency hearing, by an adjudication of incompetency for trial, by a continuance allowed pursuant to section 114-4 of this Act after a court's determination of the ...