APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SIXTH DIVISION
546 N.E.2d 645, 190 Ill. App. 3d 224, 137 Ill. Dec. 700 1989.IL.1656
Appeal from the Circuit Court of Cook County; the Hon. Ronald Himel, Judge, presiding.
JUSTICE McNAMARA delivered the opinion of the court. EGAN, P.J., and QUINLAN, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCNAMARA
The State appeals from a trial court order dismissing the indictment against defendant, Michael Daniels, for violation of the speedy trial statute. The State contends that the court improperly dismissed the indictment because the nolle prosequi sought and obtained by the State tolled the running of the speedy trial period.
On January 31, 1987, defendant was arrested for possession of a controlled substance and was taken into custody. On February 26, 1987, defendant appeared for a preliminary hearing. The court denied the State's request for a continuance to await the laboratory report on the analysis of the seized substance. The State was allowed to nolpros the charges pending against defendant due to its inability to obtain the laboratory report.
On March 17, 1987, the laboratory analysis was complete. On August 12, 1987, an indictment was returned against defendant. Defendant moved to dismiss the indictment, alleging a violation of his right to a speedy trial. The court found the nolle prosequi did not toll the statute for speedy trial purposes and granted the motion to dismiss.
The speedy trial statute provides as follows:
"(a) Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant . . ..
(b) Every person on bail or recognizance shall be tried by the court having jurisdiction within 160 days from the date defendant demands trial unless delay is occasioned by the defendant . . ..
(d) Every person not tried in accordance with subsections (a), (b), and (c) of this Section shall be discharged from custody or released from the obligations of his bail or recognizance." (Ill. Rev. Stat. 1987, ch. 38, pars. 103-5(a) through (d).)
Thus, the statute by definition applies only to persons either in custody or on bail or recognizance. Accordingly, the speedy trial provisions are inoperative unless charges are pending against defendant. People v. Stinnett (1988), 166 Ill. App. 3d 1027, 520 N.E.2d 1204; People v. Sanders (1980), 86 Ill. App. 3d 457, 407 N.E.2d 951.
Defendant points out, however, that the speedy trial statute has been held to apply in those situations in which the charges against a defendant have been stricken with leave to reinstate . (See People v. Baskin (1967), 38 Ill. 2d 141, 230 N.E.2d 208.) Defendant maintains, and the trial court found, that the speedy trial provisions apply with equal force when a ...