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12/05/89 the People of the State of v. Daniel W. Honnold

December 5, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

DANIEL W. HONNOLD, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

547 N.E.2d 755, 191 Ill. App. 3d 340, 138 Ill. Dec. 588 1989.IL.1883

Appeal from the Circuit Court of Macon County; the Hon. Paul M. Francis, Judge, presiding.

APPELLATE Judges:

JUSTICE GREEN delivered the opinion of the court. KNECHT, P.J., and STEIGMANN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GREEN

On January 5, 1989, the circuit court of Macon County found defendant Daniel W. Honnold guilty of driving under the influence of alcohol (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11-501(a)(2)) and driving at a speed greater than that which is reasonable and proper (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11-601(a)). The court subsequently placed him on court supervision for a period of one year and imposed a $550 fine.

On appeal, defendant contends he was denied his right to a speedy trial on the theory Supreme Court Rule 505 (113 Ill. 2d R. 505) granted him a right to trial within 49 days of his initial court appearance. We disagree with this interpretation of Supreme Court Rule 505 and affirm.

At all times pertinent, Supreme Court Rule 504 provided that, in traffic and conservation violation cases, "whenever practicable," an arresting officer "shall" set a date for an accused's appearance in court at not less than 14 days but within 49 days after the date of his arrest. (113 Ill. 2d R. 504.) At all times pertinent, Supreme Court Rule 505 provided that, if an accused intended to plead not guilty, the accused was required to notify the clerk of the court in which he was charged of that intent within five days of the set appearance date, upon receipt of which "the clerk [was directed to] set a new appearance date not less than 7 days nor more than 49 days after the original appearance date set by the arresting officer, and notify all parties of the new date and the time for appearance." (Emphasis added.) 113 Ill. 2d R. 505.

Here, the arresting officer charged defendant by citation with the previously mentioned offenses on August 21, 1988. The officer then scheduled defendant's first court appearance for September 27, 1988. On September 9, 1988, defendant, by and through his attorney, entered his appearance in the cause, demanded a bench trial, and pleaded "not guilty" to the charges.

Defendant and his attorney appeared in court on September 27, 1988, the date previously set by the arresting officer. At that time, the court allotted the cause for bench trial on December 15, 1988. No transcript was made of that hearing, and the docket sheet does not indicate whether defendant objected at that time to the December trial date set by the court.

On November 23, 1988, defendant moved to dismiss the charges pending against him. He claimed more than 49 days would have elapsed from the original appearance date until the date of trial, and, thus, pursuant to Supreme Court Rule 505, the charges had to be dismissed. At the hearing held on that motion, the State argued in part the 49-day time limit did not have to be met under the circumstances because: (1) the actual scheduling of cases on the court's docket was beyond the control of the prosecutor; and (2) defendant had failed to object to the trial date at the time it was set and did not demand an earlier setting.

The court subsequently denied defendant's motion. In doing so, it reasoned defendant had "'implicitly' agreed to continuing the matter beyond the statutory forty-nine [day] trial time limit" by appearing personally and with counsel on September 27, 1988, and failing to object to the December 15, 1988, trial date. The matter proceeded to bench trial, and defendant received the aforementioned convictions and sentences.

The defendant has maintained throughout that, under the holdings in People v. McCarrey (1984), 122 Ill. App. 3d 61, 460 N.E.2d 781, People v. Mears (1980), 84 Ill. App. 3d 265, 405 N.E.2d 443, and People v. Nelson (1974), 18 Ill. App. 3d 628, 310 N.E.2d 174, Supreme Court Rule 505 gives a defendant an absolute right to a bench trial within 49 days after the first appearance date as established by Supreme Court Rule 504. Originally, the State did not contest the foregoing rule as a general proposition but contended here the special circumstance of the failure of defendant to object to the court order setting the trial at a later date and the situation created by a heavy docket which prevented the court from giving an earlier setting justified a setting beyond the 49-day period.

This court became concerned with whether the statement in Supreme Court Rule 505 that the "clerk" of the court set a subsequent appearance date within 49 days of the first appearance date created a right of the defendant to a trial within that period of time. We requested further briefing of the parties. Defendant stands by his original position, but the State now contends the ...


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