APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION
548 N.E.2d 509, 191 Ill. App. 3d 1034, 139 Ill. Dec. 124 1989.IL.1868
Appeal from the Circuit Court of Cook County; the Hon. Ronald A. Himel, Judge, presiding.
JUSTICE CAMPBELL delivered the opinion of the court. O'CONNOR and BUCKLEY, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CAMPBELL
On January 20, 1987, defendant was arrested for possession of a controlled substance. At the preliminary hearing on February 9, 1987, defendant was in custody and demanded trial. The State advised the court that the laboratory analysis of the substance recovered from defendant had not yet been completed. Since defendant refused to enter a stipulation regarding the substance, the State requested a continuance to obtain the results. The court denied the request, and for this reason the State chose to nol-pros the charge. Defendant was released from custody.
Eleven days later, on February 20, 1987, the State obtained the laboratory analysis of the substance that had been recovered from defendant. Despite the fact that all of the evidence was within the State's control as of that date, defendant was not reindicted and rearraigned on the same charge until October 13, 1987, nearly eight months later. On January 28, 1988, defendant filed a motion requesting that this new indictment against him be discharged based upon the State's failure to comply with the statutory provision that guarantees a speedy trial. (Ill. Rev. Stat. 1985, ch. 38, par. 103-5.) On March 1, 1988, the circuit court granted defendant's motion, ruling that defendant's right to a speedy trial had been "usurped" by the State's actions. The circuit court found that the delay in bringing defendant to trial had been occasioned by the State's lack of due diligence in prosecuting the case and that the State's decision to nol-pros the case at the time of the preliminary hearing was clearly a measure calculated and designed to circumvent the statutory provisions that guarantee a defendant a speedy trial once he has been charged with a crime. We must disagree.
Sections 103-5(a) and (b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, pars. 103-5(a), (b)), known as the speedy-trial statute, provide, in general, that a person who is incarcerated must be tried within 120 days from the date he was taken into custody and that a person who is released on bail or recognizance must be tried within 160 days of his demand for trial. The speedy-trial statute is not operative unless charges are pending against the defendant. The 120-day period may be invoked only when the defendant is "in custody," and the 160-day period may be invoked only when the defendant is out on bail or recognizance and has demanded trial. People v. Freedman (1987), 155 Ill. App. 3d 469, 474, 508 N.E.2d 326.
In People v. Sanders (1980), 86 Ill. App. 3d 457, 466, 407 N.E.2d 951, the court recognized that cases involving the application of the speedy-trial provisions when charges have been dismissed and reinstated typically fall into one of three categories: (1) those cases where the charges are dismissed upon a judicial determination at the preliminary hearing that no probable causes exists and the State subsequently refiles the charges; (2) those cases where the charges are dismissed upon the State's request that they be stricken with leave to reinstate and the State later reinstates the charges; and (3) those cases where the State chooses to nol-pros the charges that have been filed and then later refiles the same charges. Whether the statutory term under the speedy-trial statute continues to run, whether it is tolled or whether it begins to run anew with the subsequent filing has usually turned on a determination of which of the three above-described Dispositions is involved. As will be discussed below, there is clearly a rationale for distinguishing between the treatment of the cases based on the type of Disposition obtained or requested by the State.
When charges against a defendant are dismissed by the court for a lack of probable cause, a judicial determination has been made in favor of the defendant. It is not a voluntary act by the State. The State may begin to prosecute the defendant again only by refiling the charges after obtaining additional evidence. Because a defendant would no longer be in custody or on bail or recognizance after a dismissal for lack of probable cause, the speedy-trial statute no longer is applicable. Furthermore, in this type of dismissal, the State clearly has little opportunity to manipulate the proceeding or purposely evade the operation of the statutory term. (People v. Toney (1978), 58 Ill. App. 3d 364, 368, 374 N.E.2d 695; see also People v. Gimza (1977), 56 Ill. App. 3d 477, 371 N.E.2d 1135.) For these reasons the statutory period has been held to begin anew with the new filing.
When charges have been SOL, it has been said that "the charges continue to lie against the accused, albeit in a dormant state, and they may be resurrected upon the State's motion at any time." (People v. Griffin (1978), 58 Ill. App. 3d 644, 646, 374 N.E.2d 1031.) Because charges that are SOL are still pending against the defendant and the prosecution is not effectively terminated, but merely suspended for a time, the statutory speedy-trial term will be deemed to continue to run, assuming of course that defendant is in custody or has demanded trial. People v. Griffin, 58 Ill. App. 3d at 646.
In the third situation, where the State requests a nolle prosequi on charges that have been brought against a defendant, the effect is to terminate the proceedings with respect to those charges. As a result, defendant is free to go and to do as he pleases and is not required to post bond or to enter into a recognizance to appear at another time. Furthermore, if the charges are nol-prossed before jeopardy attaches, subsequent prosecution of the identical charges is permitted. People v. Watson (1946), 394 Ill. 177, 68 N.E.2d 265.
Because charges that have been nol-prossed are not pending and because defendant is neither in custody, nor on bail or recognizance, the situation is akin to an involuntary dismissal for lack of probable cause. By the same token, because the decision to nol-pros lies within the "unfettered discretion" of the State's Attorney and could be used to manipulate the proceedings, charges that have been nol-prossed are treated somewhat differently. (People v. Sanders, 86 Ill. App. 3d at 467.) In these instances the speedy-trial term is tolled during the period of time that the charges are no longer pending and defendant is neither in custody nor on bail or recognizance. The clock will continue to run once again with the refiling of the charges that were previously nol-prossed. People v. Sanders (1980), 86 Ill. App. 3d 457.
Notwithstanding the fact that the statutory term will generally be deemed tolled by a nolle prosequi, the State's absolute power to request this type of Disposition requires an additional inquiry to determine whether the State is abusing this power and whether the refiling was vexatious, repetitious or employed to manipulate the proceedings in order to evade or frustrate the purpose of the speedy-trial statute. (People v. Freedman, 155 Ill. App. 3d at 474; People v. Olson (1984), 128 Ill. App. 3d 560, 470 N.E.2d 1176; People v. Verstat (1983), 112 Ill. App. 3d 90, 444 N.E.2d 1374.) If it is determined that the State engaged in technical maneuvering or that the State procured the nolle prosequi to cause delay or avoid statutory limitations, the speedy-trial term will not be deemed tolled. Rather, in those instances the statutory term will ...