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02/23/89 the People of the State of v. Kevin Clay Garrett

February 23, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT

v.

KEVIN CLAY GARRETT, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

536 N.E.2d 77, 180 Ill. App. 3d 482, 129 Ill. Dec. 393 1989.IL.227

Appeal from the Circuit Court of Madison County; the Hon. Charles J. Romani, Jr., Judge, presiding.

APPELLATE Judges:

JUSTICE LEWIS delivered the opinion of the court. WELCH, P.J., concurs. JUSTICE HARRISON, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LEWIS

Defendant, Kevin Clay Garrett, was arrested on March 9, 1987, for offenses arising from a shoot-out with police that same evening. He was subsequently charged by information on March 10, 1987, with two counts of attempted murder and one count of unlawful use of a firearm by a felon, and bond was set at $400,000. On March 30, 1987, defense counsel entered his appearance of record, Garrett's plea of not guilty and a demand for a speedy jury trial. On April 27, an amended information was filed adding one count of defacing identification marks on a firearm. On May 27, bond was reduced to $75,000 pursuant to Garrett's motion, and he was subsequently released on May 29, after posting bond.

The case was set for trial on June 8, 1987, and, on that date, Garrett successfully sought a continuance until July 1987. On August 5, 1987, the State sought and received a continuance to September 8, 1987. On October 5, 1987, the State again moved to continue the case because the only assistant Attorney General who had investigated, had interviewed the witnesses, and had prepared the case was conducting a trial in another matter. The motion was granted and trial was set for November 16, 1987.

On October 13, 1987, Garrett moved to dismiss on grounds that he had not been brought to trial within 160 days of his demand for a speedy trial, as required by section 103-5(b) of the Illinois Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 103-5(b)). This motion was argued on November 9, 1987, and the court entered an order on November 18, 1987, finding that defendant's in-custody demand for a speedy trial was effective to trigger the running of the 160-day time period in which to bring defendant to trial, and that after subtracting the delay attributable to Garrett, more than 160 days had elapsed from Garrett's speedy trial demand. The trial court dismissed the case and this appeal followed.

At issue is whether, under the facts of this case, a speedy trial demand made while in custody triggered the 160-day time period. Section 103 -- 5 of the Illinois Code of Criminal Procedure of 1963 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, . . ..

(b) Every person on bail or recognizance shall be tried by the court having jurisdiction within 160 days from the date defendant demands trial unless the delay is occasioned by the defendant . . .." Ill. Rev. Stat. 1987, ch. 38, pars. 103-5(a), (b).

The cases involving the issue presented here are limited in number; therefore, we will briefly discuss each of them. In People v. Byrn (1971), 3 Ill. App. 3d 362, 274 N.E.2d 186, the defendant made an oral demand for a speedy trial while in custody, but the trial court noted in the record only that he had made a demand for a jury trial. Defendant was subsequently released on bail, over two months after his demand for speedy trial was made. Several months later he moved to dismiss the charges against him as he had not been brought to trial within 160 days as required by section 103 -- 5(b). The motion was granted but this court reversed the trial court's ruling, holding that section 103 -- 5(b) applies only to defendants who are "on bail" and that the defendant must be "on bail" when his speedy trial demand is made.

In People v. Arch (1975), 33 Ill. App. 331, 337 N.E.2d 221, the defendant made a written demand for a speedy trial while in custody and was released on bail the following day. Distinguishing Byrn, the court held that as the demand for a speedy trial was a written one and therefore sufficient to put the State on notice that defendant was demanding a speedy trial, it would have been unduly repetitious to require defendant to renew that demand when released on bail the following day. The court, persuaded by the proximity in time of the defendant's demand for speedy trial to his release on bail, considered the defendant's demand to be a continuing one and held it to be sufficient to trigger the 160-day time period.

In People v. Adams (1982), 106 Ill. App. 3d 467, 435 N.E.2d 1203, the defendant made a written demand for a speedy trial while in custody and was subsequently released on bail several days later. Citing Byrn, the court held that because defendant's demand was made while still in custody and not renewed either when filing a motion for ...


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