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09/28/89 the People of the State of v. Earsley M. Smith

September 28, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

EARSLEY M. SMITH, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

544 N.E.2d 1162, 189 Ill. App. 3d 80, 136 Ill. Dec. 387 1989.IL.1553

Appeal from the Circuit Court of Champaign County; the Hon. John G. Townsend, Judge, presiding.

APPELLATE Judges:

JUSTICE LUND delivered the opinion of the court. KNECHT and SPITZ, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND

On September 23, 1988, defendant Earsley Smith, following a trial in absentia, was found guilty by a jury sitting in the circuit court of Champaign County of the offenses of aggravated battery and resisting a peace officer, in violation of sections 12-4(b)(6) and 31-1, respectively, of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, pars. 12-4(b)(6), 31-1). He was subsequently placed on probation for each offense. He now appeals.

On July 11, 1988, defendant was charged by information with two counts of aggravated battery and one count of resisting a police officer. The information alleged that upon his arrest for an unrelated matter, defendant struggled, attempted to pull away, and spit in the face of one officer. On that day, he was advised of the possibility of trial in absentia, pursuant to section 113-4 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 113-4). The trial was set for September 12, 1988, and defendant was released on bond.

On September 12, defendant appeared with his counsel, and the matter was reset for September 19. On September 19, the case was set for September 21. Defendant did not appear at this hearing. On September 21, the case was called for trial, and defendant failed to appear. The State moved for trial in absentia, and the court continued the matter to September 23 for a hearing on the motion.

At that hearing, defense counsel testified he spoke with defendant, who was residing in Chicago, by telephone on September 18, advising him there would be no trial on September 19, and he need not appear. Defendant was instructed to call counsel at noon on the 19th to learn about the new trial date. He did not do so. Counsel attempted to contact defendant many times after that, but was unsuccessful. The court granted the State's motion, and defendant was convicted.

Defendant's first contention of error is that the State did not comply with all the proper procedures to try him in absentia. Section 115-4.1 of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 115-4.1) provides that when a date for a trial in absentia is set, the clerk shall send defendant, by certified mail, notice of the trial date to his address indicated on his bond slip. We have held this provision to be mandatory. People v. Williams (1987), 151 Ill. App. 3d 1010, 1013, 503 N.E.2d 1090, 1092.

The State acknowledges this holding, but asks us to carve an exception where the defendant was present when the original trial date was set, and the defendant, by his conduct in failing to keep the court or his counsel informed of his whereabouts, would not have received the certified mail. We must decline the proffered opportunity.

In reaching our decision in Williams, we stated:

"In concluding that the certified mailing procedure is mandatory, we are not unaware of the probable futility of the procedure in this case. All trial Judges with a substantial criminal calendar have reason to be frustrated by the technical nature of this decision. The legislation establishing trials in absentia changed the rights of all those who fail to appear for trial. The specific provisions of the legislation were intended to protect the constitutional right to trial yet remedy a problem facing the criminal courts. We find it necessary to give strict construction to the provisions of the act." (Williams, 151 Ill. App. 3d at 1013, 503 N.E.2d at 1092.)

Recently, in a case involving the oral admonitions of section 113--4, we reaffirmed our position that the provisions involved in the trial in absentia sections must receive a strict construction. (See People v. Lester (1988), 165 Ill. App. 3d 1056, 1059-60, 519 N.E.2d 1127, 1130.) Accordingly, since notice of the September 23 trial date was not sent in accordance ...


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