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07/19/89 the People of the State of v. James Belcher

July 19, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT

v.

JAMES BELCHER, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

542 N.E.2d 419, 186 Ill. App. 3d 202, 134 Ill. Dec. 240 1989.IL.1122

Appeal from the Circuit Court of Lake County; the Hon. Alvin I. Singer, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE UNVERZAGT delivered the opinion of the court. DUNN and WOODWARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE UNVERZAGT

The State appeals from an order of the circuit court of Lake County dismissing a three-count complaint filed against defendant, James Belcher. The State raises one issue on appeal: whether the trial court erred in granting defendant's motion to dismiss the charges which asserted the State had violated his right to a speedy trial.

The State filed a criminal complaint against defendant on December 27, 1985. A warrant for defendant's arrest was also issued on December 27, 1985. Defendant was arrested on April 5, 1988. On May 18, 1988, defendant filed a motion to dismiss all charges, alleging that between June 3, 1986, and March 3, 1988, defendant was in custody and successfully completed a four-year sentence in the Illinois Department of Corrections; defendant was convicted and sentenced under the name of James Belcher; defendant has never used an alias; and the delay in arresting defendant was unnecessary, unjustified and not defendant's fault. As a result, defendant alleged he was denied his right of speedy trial.

At the hearing on the motion, defendant testified that he was incarcerated in the Illinois Department of Corrections for an offense committed in 1986 in Cook County. Defendant was released from prison on March 3, 1988, and was arrested on the present charges in April 1988.

Prior to his arrest, defendant was not aware that a warrant was outstanding against him. After his release from prison, defendant began part-time employment and regularly reported to his parole officer.

The public defender argued that the delay was excessive. Since defendant was in the custody of the State during the delay, he could easily have been found had the Lake County sheriff checked the records of the Department of Corrections. Counsel also argued that defendant was presumptively prejudiced in light of the length of the delay. Defendant was actually prejudiced because he had been in prison, and had he been promptly tried, he could have received a concurrent sentence. Defendant was also subject to oppressive pretrial incarceration because he was already in prison when the case should have been tried. The delay had also caused defendant anxiety because he had taken courses while in prison and after his release had gotten a job and was starting a new life. Then he was arrested and was put back in jail little more than one month after his release.

The prosecutor argued that defendant had not shown that his defense would be prejudiced were he to proceed to trial and, therefore, defendant's right of speedy trial was not violated. The court dismissed the charges. The State then filed a motion to reconsider. At the hearing, the State argued that the delay in this case was preindictment and the Lawson standard should apply. (See People v. Lawson (1977), 67 Ill. 2d 449.) The State argued that a court cannot presume prejudice under Lawson. The State's reasoning was that since there was no indictment, it was a preindictment case. The court concluded that there were pending charges in 1985, even though those charges were made by complaint and, as such, it was a post-indictment arrest and delay. In reaching its decision to deny the State's motion, the court stated:

"Defendant was incarcerated under the same name, he was in the Illinois Department of Corrections, he was not out of the State of Illinois, and there just was no reason that any search, as far as I know, could not have found out where he was so that he could have proceeded in the case."

After the court dismissed the petition, the State timely filed this appeal pursuant to Supreme Court Rule 604(a)(1) (107 Ill. 2d R. 604(a)(1)).

The State contends that the trial court erred in dismissing the charges against defendant. The State advances three main arguments in support of this contention: (1) the court applied the wrong standard when it decided whether to dismiss the charges; (2) the court should not have dismissed the charges because they were brought within the statute of ...


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