APPELLATE COURT OF ILLINOIS, THIRD DISTRICT
536 N.E.2d 449, 180 Ill. App. 3d 755, 129 Ill. Dec. 609 1989.IL.337
Appeal from the Circuit Court of Rock Island County; the Hon. Clarence A. Darrow, Judge, presiding.
JUSTICE SCOTT delivered the opinion of the court. BARRY, J., concurs. JUSTICE HEIPLE, Dissenting.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCOTT
The trial court granted defendant Ricky Bowman's motion to dismiss, based on a violation of his statutory right to a speedy trial. The State appeals the order.
On April 29, 1987, the defendant was charged in a criminal complaint with residential burglary. On August 6, 1987, the defendant was placed in the Rock Island County jail, and on the same day, a public defender was appointed to represent him. The next day, the defendant demanded a speedy trial. On August 11, 1987, attorney Fred Kopp was appointed to represent the defendant. Kopp had a contract with the County of Rock Island to represent criminal defendants who might have a conflict with the public defender's office. On October 8, 1987, the defendant was arraigned and a trial date of November 23, 1987, was set.
On November 1, 1987, attorney Alexander Jarrin replaced Kopp as conflicts public defender, since Kopp had terminated his employment with the County of Rock Island effective October 31, 1987. On November 18, 1987, Jarrin filed a motion to remove the defendant's case from the November jury list and to continue the case, alleging that he had insufficient time to prepare a defense. Although Jarrin and the prosecutor stipulated that the delay would be attributable to the defendant, their stipulation was not included in the order granting the motion. The defendant was not present when the motion was presented nor was a hearing conducted on the motion.
In mid-January of 1988, the defendant wrote a letter to the chief Judge stating that he had not wanted a continuance and that he had desired to go to trial on November 23, 1987. He further pointed out that he had not had a trial date set since the continuance. Approximately two weeks later, the defendant again wrote to the chief Judge, requesting that attorney Richard Coppula be appointed to represent him.
On February 19, 1988, Coppula filed an entry of appearance on behalf of the defendant and Jarrin was allowed to withdraw. On that same day, the defendant filed a motion to dismiss, alleging a violation of the speedy trial act (Ill. Rev. Stat. 1987, ch. 38, par. 103-5). The defendant had been in custody continuously for a period of 197 days, from August 6, 1987, until his motion to dismiss was filed. Following a hearing, the trial court granted the defendant's motion, discharging the defendant. On February 24, 1988, the State filed a motion to reconsider, which the trial court subsequently denied.
On appeal, the State argues that the trial court erred in granting the defendant's motion to dismiss. The State contends that the 120-day speedy trial period was tolled by the defendant's motion to remove his case from the jury list and to continue the matter.
Section 103-5(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 103-5(a)) provides that an accused in custody is to be brought to trial within 120 days from the date he was taken into custody, unless delay is occasioned by the defendant. When a court-appointed counsel withdraws on his own initiative due to a conflict of interest, any resulting delay cannot be charged to the defendant (People v. Roberts (1985), 133 Ill. App. 3d 731, 479 N.E.2d 386), unless the withdrawal was made under circumstances from which it may be inferred that the defendant acquiesced in the delay (People v. McGuire (1984), 123 Ill. App. 3d 908, 463 N.E.2d 1041). Since the trial court is in a better position to determine whether the defendant acquiesced in the delay, a reviewing court will affirm its decision unless it amounts to an abuse of discretion. People v. Keagbine (1979), 77 Ill. App. 3d 1039, 396 N.E.2d 1341.
At the hearing on the instant defendant's motion to dismiss, the defendant testified that he was not notified until November 18, 1987, that attorney Kopp no longer represented him. The defendant further testified that he was not aware that his newly appointed counsel, Alexander Jarrin, had filed a motion for a continuance until two days after it was filed. The defendant testified that he told Jarrin that he did not want a continuance.
Kopp testified on behalf of the State that he had informed the defendant in late October that Jarrin would be taking over the case and would probably need more time to prepare. Kopp also explained to the defendant that he could either have the case settled before Kopp left or go to trial with a new lawyer. The defendant then told Kopp that he did not want to plea bargain. The defendant further indicated that a continuance would be fine because he wanted to spend as much time as he could in the Rock Island County jail. According to Kopp, the defendant believed that time spent in the Rock Island County jail would be credited against time he was required to serve in an Iowa correctional facility. Kopp also testified ...