APPELLATE COURT OF ILLINOIS, THIRD DISTRICT
539 N.E.2d 460, 183 Ill. App. 3d 442, 132 Ill. Dec. 150 1989.IL.814
Appeal from the Circuit Court of Will County; the Hon. Robert R. Buchar, Judge, presiding.
JUSTICE HEIPLE delivered the opinion of the court. WOMBACHER, P.J., and STOUDER, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HEIPLE
Initially, the defendant contends that his murder conviction must be reversed because the State violated his statutory right to a speedy trial. The defendant was arrested on September 5, 1986, and charged with unlawful possession of a weapon by a felon (Ill. Rev. Stat. 1987, ch. 38, par. 24-1.1). He was released on September 6, 1986, after posting bond, but failed to appear in court on September 10, 1986. On September 12, the police questioned Bernice Jasurda, who implicated the defendant in the September 8, 1986, murder of James Cox. The defendant was later arrested in Nebraska and returned to Will County on October 7, 1986. The State charged him with murdering Cox.
On October 28, 1986, the defendant filed a written demand for a speedy trial on the murder charge. Indictments were returned November 5, 1986, on both the murder and weapon charges. On January 20, 1987, the date set for trial on the murder charge, the State moved for a continuance because it could not locate Jasurda. The cause was continued until March 23, 1987. On January 27, 1987, the defendant pled guilty to the unlawful possession of a weapon charge and sentencing was set for March 23, 1987.
On March 23, the trial court granted the State's motion to nolpros the pending murder charge. The State was still unable to locate Jasurda and believed it could not carry its burden of proof without her testimony. At that time, final judgment was entered on the weapon charge and the defendant was sentenced to two years in prison.
In October of 1987, Jasurda was located and arrested in Georgia. The State filed a criminal complaint for murder against the defendant on October 26, 1987, and he was arrested on the murder charge on October 28. At the time, he was still incarcerated for the weapon conviction.
On November 23, 1987, the State filed an information charging the defendant with murder (Ill. Rev. Stat. 1987, ch. 38, par. 9-1(a)(1)) and felony murder (Ill. Rev. Stat. 1987, ch. 38, pars. 9-1(a)(3), 18-2(a)). The defendant's trial commenced on March 2, 1988. At the close of the State's case, the trial court granted the defendant's motion for a directed verdict of acquittal on the felony murder charge. The jury subsequently found the defendant guilty of the remaining murder charge.
When a person is in custody with more than one charge pending against him in the same county, he must be tried or adjudicated guilty upon one of the charges within 120 days and tried on the remaining charges within 160 days from the date on which judgment on the first charge was entered. (Ill. Rev. Stat. 1987, ch. 38, par. 103-5.) Normally, a motion by the State to nol-pros a case will toll the statutory speedy trial period, as the nolle prosequi procedure terminates the pending charge against the defendant and requires the institution by the State of a new proceeding in order to prosecute the dismissed offense. (People v. Dace (1988), 171 Ill. App. 3d 271; People v. Stinnett (1988), 166 Ill. App. 3d 1027, 520 N.E.2d 1204.) Since the speedy trial period runs only when a charge is pending against the defendant, the time period between the granting of a motion to nol-pros and the reinstitution of charges does not count toward the statutory term. People v. Sanders (1980), 86 Ill. App. 3d 457, 407 N.E.2d 951.
In the instant case, the State moved to nol-pros the murder charge on the day final judgment was entered on the defendant's weapon charge. The defendant was charged by a new criminal complaint on October 26, 1987, and his trial commenced on March 2, 1988. Since no charge was pending against the defendant from March 23, 1987, to October 26, 1987, this period did not count toward the statutory term. The 160-day term did not begin running until October 26, 1987. The defendant's trial commenced within 160 days of that date, so his statutory right to a speedy trial was not violated.
We find no merit to the defendant's claim that the State used the nolle prosequi procedure to evade the requirements of the speedy trial statute. The State's reason for filing its motion was the unavailability of Bernice Jasurda, its key witness. There is no evidence that the State was attempting to evade the requirements of the statute. See People v. Stinnett (1988), 166 Ill. App. 3d 1027, 520 N.E.2d 1204.
The defendant cites People v. Newell (1980), 83 Ill. App. 3d 133, 403 N.E.2d 775, in support of his contention that his statutory right to a speedy trial was violated. We find Newell distinguishable on its facts and not applicable to the present case. In Newell, a criminal complaint filed against the defendant was dismissed on the State's motion. Later the State moved to reinstate the complaint. The trial court crossed out the original dismissal order on the docket sheet and reset the case for trial. The defendant then filed a motion to dismiss the complaint on the ground of double jeopardy. The trial court granted the defendant's motion. The State took no appeal from this dismissal order, but rather indicted the defendant based on the same act alleged in the complaint. This court affirmed the trial court's dismissal of the indictment. The basis for this court's decision was the State's failure to appeal the denial of its motion to reinstate the original complaint. The ...