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08/24/89 the People of the State of v. Raphael Clark

August 24, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

RAPHAEL CLARK, DEFENDANT-APPELLANT

NOT ONCE DID DEFENDANT DEMAND TRIAL OR PROSECUTION UNDER THE INTERSTATE AGREEMENT ON DETAINER ACT (ILL. RE

v.

STAT. 1987, CH. 38, PAR. 1003-8-9 ET SEQ.).



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

544 N.E.2d 32, 188 Ill. App. 3d 130, 135 Ill. Dec. 675 1989.IL.1290

Appeal from the Circuit Court of St. Clair County; the Hon. William B. Starnes, Judge, presiding.

APPELLATE Judges:

JUSTICE HOWERTON delivered the opinion of the court. GOLDENHERSH and RARICK, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HOWERTON

Defendant kidnapped Gary Decker and his wife, Donna, on a St. Louis parking lot, robbed and murdered Gary Decker in Missouri, and raped and murdered Donna Decker in St. Clair County, Illinois.

Defendant was arrested on March 2, 1983, by United States Marshalls who jailed him in the St. Clair County jail, a federally approved jail, as a prisoner of the United States. He remained there as a prisoner of the United States until sent to the United States penitentiary at Leavenworth, Kansas, on June 23, 1983, for 120 years.

While in the St. Clair County jail, on June 2, 1983, defendant was indicted in St. Clair County, Illinois, for the rape and murder of Donna Decker. On June 17, 1983, he was arraigned in St. Clair County, pled not guilty, and was appointed a public defender.

Missouri filed a detainer against defendant for Gary Decker's murder after defendant had been sent to Leavenworth. Defendant was tried, convicted and, on April 6, 1984, sentenced to the Missouri penitentiary for his natural life without parole for 50 years and returned to the custody of the Attorney General of the United States to first satisfy the 120-year sentence of the United States of America.

On January 8, 1985, Illinois dismissed the charges against defendant, refiled them on September 24, 1986, and on January 24, 1987, for the first time, served an arrest warrant on defendant. Defendant immediately was brought to Illinois. On June 8, 1987, after a stipulated bench trial, defendant was found guilty of murder and rape. He was sentenced to 50-year concurrent terms on each offense, with both sentences consecutive to the sentences imposed by the United States and Missouri.

Now he claims: (1) Illinois deprived him of his statutory right to be tried within 120 days (Ill. Rev. Stat. 1987, ch. 38, par. 103-5); (2) Illinois deprived him of his right to a speedy trial, as guaranteed by the sixth amendment to the Constitution of the United States, made applicable to Illinois by the due process clause of the fourteenth amendment to the Constitution of the United States; and (3) that he inappropriately was sentenced to an extended term of 50 years for rape, even though he agreed to the sentence.

Taking the third contention first, the State agrees that 50 years is an unauthorized, extended sentence for rape; murder was the most serious offense with which he was charged and and an extended term can be entered only on the most serious charge. (Ill. Rev. Stat. 1983, ch. 38, par. 1005-8-2(a); People v. Jordan (1984), 103 Ill. 2d 192, 469 N.E.2d 569.) The State further agrees that a court cannot impose a sentence for a term longer than that allowed by the legislature, even though defendant bargains for a longer sentence. (People v. Majer (1985), 131 Ill. App. 3d 80, 475 N.E.2d 269.) Accordingly, we are compelled to give defendant a reduction of his sentence. Defendant's sentence for rape is hereby reduced to 30 years, but otherwise is unchanged.

Contrary to defendant's complaint, Illinois did not deprive him of his statutory right to a speedy trial as provided by section 103-5(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 103-5(a)).

Defendant relies on People v. Fosdick (1967), 36 Ill. 2d 524, 224 N.E.2d 242, to support his position that he was not placed on trial within 120 days, and therefore, the charges against him must ...


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