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06/15/89 the People of the State of v. Robert Covelli

June 15, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

ROBERT COVELLI, DEFENDANT-APPELLANT. -- THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,

v.

ROBERT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

COVELLI, Defendant-Appellee

540 N.E.2d 569, 184 Ill. App. 3d 114, 132 Ill. Dec. 829 1989.IL.895

Appeal from the Circuit Court of Du Page County; the Hon. Edward W. Kowal, Judge, presiding.

Rehearing Denied July 11, 1989.

APPELLATE Judges:

PRESIDING JUSTICE UNVERZAGT delivered the opinion of the court. INGLIS and REINHARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE UNVERZAGT

The defendant, Robert Covelli, was charged by indictment in the circuit court of Du Page County on June 28, 1985, with six counts of murder and one count of armed robbery (Ill. Rev. Stat. 1987, ch. 38, pars. 9-1(a)(1), (a)(2), (a)(3), 18-2(a)) arising from the killing and armed robbery of Cynthia Princeton on January 2, 1982, at a pawnshop in Elmhurst, Illinois. The armed robbery indictment alleged that the time in which the instant prosecution was to be commenced did not include the period July 2, 1982, to July 29, 1984, inasmuch as the former date was the date the defendant was indicted in Federal court on charges arising out of this same incident and the latter was the date his conviction was affirmed in United States v. Covelli (7th Cir. 1984), 738 F.2d 847.

On December 18, 1986, the defendant filed a motion to dismiss all charges against him on the ground of violations of his State and Federal constitutional right to a speedy trial. In a second motion filed that same date, he sought dismissal of counts V, VI and VII inasmuch as the prosecution for armed robbery did not commence within the applicable three-year statutory limitations period (Ill. Rev. Stat. 1987, ch. 38, par. 3-5(b)). Defendant also sought dismissal at that time of all charges on the ground of former jeopardy as a result of the Federal court prosecution (Ill. Rev. Stat. 1987, ch. 38, par. 3-4(c)(1)). On January 8, 1987, the State moved to strike all motions as being untimely, and to strike the defendant's speedy trial claim on the basis he failed to allege prejudice.

The day after a hearing held on May 11, 1987, the court rejected the State's timeliness argument, granted the defendant's motion to dismiss count VI (armed robbery) for failure to comport with the requirements of the statute of limitations, and denied all other motions to strike and dismiss. Pursuant to Supreme Court Rule 604, the State appeals the dismissal of count VI, and the defendant appeals the denial of his motions to dismiss on the ground of former jeopardy. (107 Ill. 2d Rules 604(a)(1), (f).) The cases were consolidated for appeal on the State's motion.

We first address the defendant's motion to strike page 4 of the State's answer brief titled "Corrected Statement of Facts" which was ordered to be taken with the case. In its corrected statement, the State asserts the "Statement of Facts" in the defendant's brief filed April 28, 1988, "is inaccurate and incomplete, in that it does not summarize the whole procedural history of the defendant's attempts to attain dismissal of the charges against him." Defendant argues the State's corrected statement does not recite in what regard he has misstated or omitted facts and contends its motions should thus be regarded as a type of harassment which is violative of the Code of Professional Responsibility. (107 Ill. 2d Canon 7.) Inter alia, Canon 7 prohibits a lawyer during the course of his representation of a client from asserting a position "when he knows or when it is obvious that such action would serve merely to harass . . . another." (107 Ill. 2d R. 7 -- 102 (a)(1).) Defendant asserts the State's failure to specifically identify his purported inaccuracies or omissions renders its corrected statement nothing more than "a suggestion that he is trying to hoodwink the court and may be considered a type of harassment."

In its objection to the defendant's motion, the State points out it provided a complete statement of facts in its appellant's brief in the consolidated appeal (No. 2 -- 87 -- 0545) which was filed on February 29, 1988 (prior to the defendant's appeal), and it did not seem necessary to again summarize the facts in order to illustrate the defendant's error.

We agree with the State that the defendant's statement of facts is inaccurate in that it is incomplete. Defendant filed not one motion to dismiss, as implied by his statement of facts, but motions "A" through "D" which were grounded on three different theories. The court did not simply "[deny] the motion" as stated by the defendant; rather, the defendant's motions to dismiss were denied in part and granted in part inasmuch as the court granted his motion to dismiss count VI for failure to comply with the statute of limitations. The fact the court granted the defendant's motion to dismiss count VI is the basis for the State's argument that the first issue raised by the defendant in his appeal -- that count VI is barred under former jeopardy principles -- is moot. We find no error in the manner in which the State has presented its corrected statement. The causes were consolidated for appeal on the State's motion on August 3, 1987, and the State's brief in No. 2 -- 87 -- 0545, which included its complete "Statement of Facts," was filed before the defendant's brief in No. 2 -- 87 -- 0459. Accordingly, the basis for the State's criticism of the defendant's statement of facts as "inaccurate and incomplete" is as obvious to this court as it must have been or should have been to the defendant.

We conclude the basis for the defendant's motion to strike page 4 of the State's answer brief is unfounded, and the motion is denied.

STATE'S APPEAL

NO. 2 -- 87 -- 0545

On the defendant's motion, the trial court dismissed the armed robbery indictment against him for failure to comply with the applicable three-year statute of limitations. (Ill. Rev. Stat. 1987, ch. 38, par. 3-5(b).) Rejecting the State's argument the limitations period was tolled during the time the defendant was being prosecuted in Federal court, the court ruled the exclusion from the limitations period provided in section 3-7 of the Criminal Code of 1961 (the Code) (Ill. Rev. Stat. 1987, ch. 38, par. 3-7 (c)) applies only to prosecutions pending in the State of Illinois.

Preliminarily, the State argues the defendant's motion to dismiss was untimely and should not have been entertained by the trial court. It points to subsection 114 -- 1(b) of the Code, which provides:

"The court shall require any motion to dismiss to be filed within a reasonable time after the defendant has been arraigned. Any motion not filed within such time or an extension thereof shall not be considered by the court and the grounds therefor, except as to subsections (a)(6) and (a)(8) of this Section, are waived." Ill. Rev. Stat. 1987, ch. 38, par. 114-1(b).

The State notes the defendant was arraigned on December 3, 1985, and his motion to dismiss was not filed until more than one year later on December 18, 1986. Thus, it contends, the court should have found the defendant had waived the issue.

The defendant answers that the State acquiesced in the late filing by failing to object to the court's determination that pretrial motions need not be filed until after the completion of discovery. Defendant further argues it was within the court's discretion to extend the time for filing pretrial motions.

The State's first objection to the pretrial motion procedure was not made until a September 26, 1986, hearing. Substantial discovery had been completed by then, and the court required pretrial motions to be filed. The defendant subsequently filed a motion to suppress on October 10, and his several motions to dismiss were filed on September 18. On January 8, 1987, the State moved to strike the motions to dismiss for untimeliness, and the hearing on the motions was held on May 11. In denying the State's motion to strike for untimeliness, the court acknowledged that it had to "share some of the problem [of untimeliness] and delays in [the] matter." We find the defendant did not waive the limitations issue by his ostensibly untimely filed motions to dismiss.

It is generally true, as the State argues, that the filing of the instant motion was not dependent upon the completion of discovery inasmuch as the dates of the crime and the indictment were known from the beginning. However, subsection 114-1(b) of the Code clearly affords the trial court discretion to extend the time for filing, and it did so here. As the defendant notes, the State has not argued the court did not have this discretion or that it was abused in this cause. The court may have felt the procedure it prescribed was warranted in light of the fact that defendant had three different appointed attorneys and was in the process of obtaining transcripts of his previous prosecution in Federal court which could possibly have been admitted to establish a double jeopardy claim under subsection 114-1(a)(2) of the Code. (Ill. Rev. Stat. 1987, ch. 38, par. 114-1(a)(2); see People v. Rothermel (1982), 88 Ill. 2d 541, 548.) That aside, it is evident from the record the ...


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