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05/04/88 the People of the State of v. Terry M. Hamilton

May 4, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

TERRY M. HAMILTON, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

523 N.E.2d 204, 169 Ill. App. 3d 105, 119 Ill. Dec. 736 1988.IL.675

Appeal from the Circuit Court of Winnebago County; the Hon. John W. Nielsen, Judge, presiding.

APPELLATE Judges:

JUSTICE HOPF delivered the opinion of the court. DUNN, J., concurs. PRESIDING JUSTICE LINDBERG, specially Concurring.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HOPF

The defendant, Terry Hamilton, was convicted of driving under the influence of alcohol (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-501(a)(2)) by the circuit court of Winnebago County. The defendant contends on appeal that his case should have been dismissed because he was not brought to trial within the time constraints of section 103-5(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 103-5(b)), which constraints equally apply to traffic defendants, pursuant to Supreme Court Rule 505 (107 Ill. 2d R. 505). We reverse.

The parties have stipulated to the facts, and only a brief review of the procedural history is necessary as a background to the legal issue raised in this appeal. On July 8, 1984, Hamilton was arrested and charged with driving under the influence of intoxicating liquor. (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-501(a)(2).) His uniform citation and complaint instructed him to appear in court on August 21, 1984, although the stipulation of facts recites July 14, 1984. On August 14, 1984, the defendant's attorney filed an appearance and, on behalf of the defendant, pleaded not guilty and demanded a jury trial. The stipulation of facts states that a motion to dismiss was filed on August 21, 1986, alleging that he was not brought to trial within the 160-day limit prescribed by section 103-5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 103-5). This motion was denied on the ground that the defendant did not make an adequate speedy trial demand. After a stipulated bench trial, the defendant was found guilty on October 29, 1986. On March 12, 1987, he was sentenced to 20 days' work release, a $100 fine, and ordered to continue alcohol treatment and counseling. This appeal ensued.

The defendant contends that the trial court erred in denying his motion to dismiss on the basis of an inadequate speedy trial demand. He argues that he made a sufficient speedy trial demand under Supreme Court Rule 505 (107 Ill. 2d R. 505); therefore, his motion to dismiss should have been granted. The State argues that an exception to Rule 505 applies in this case, rendering the defendant's demand inadequate. We disagree with the State and find that Rule 505 does apply in this case.

The version of Supreme Court Rule 505 in effect at the time of the defendant's arrest states:

"When issuing a Uniform Citation and Complaint, a conservation ticket or a Notice to Appear in lieu of either, in counties other than Cook, the officer shall also issue a written notice to the accused in substantially the following form:

AVOID MULTIPLE COURT APPEARANCES

If you intend to plead 'not guilty' to this charge, or if, in addition, you intend to demand a trial by jury, so notify the clerk of the court at least 5 days (excluding Saturdays, Sundays or holidays) before the day set for your appearance. A new appearance date will be set, and arrangements will be made to have the arresting officer present on that new date. Failure to notify the clerk of either your intention to plead 'not guilty' or your intention to demand a jury trial may result in your having to return to court, if you plead 'not guilty' on the date originally set for your court appearance.

Upon timely receipt of notice that the accused intends to plead 'not guilty,' the clerk shall set a new appearance date not less than 7 days nor more than 49 days after the original appearance date set by the arresting officer, and notify all parties of the new date and the time for appearance. If the accused demands a trial by jury, the trial shall be scheduled within the time prescribed by section 103-5 of the Code of Criminal Procedure of 1963, as amended (Ill. Rev. Stat. 1983, ch. 38, par. 103-5). If the accused fails to notify the clerk as provided above, the arresting officer's failure to appear on the date originally set for appearance may, in counties other than Cook, be considered good cause for a continuance. Any State ...


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