APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE JOHN W. CRILLY, WILL E. GIERACH, JUDGES PRESIDING.
Rehearing Denied June 29, 1994. Released for Publication July 14, 1994. Petition for Leave to Appeal Denied December 6, 1994.
O'Connor, Jr., Campbell, Buckley
The opinion of the court was delivered by: O'connor
Justice O'Connor delivered the opinion of the court:
On August 4, 1986, defendant, Michael Moore, held a gun to Mary Ann Zawada's head and robbed her of the money in her cash register at a Dolton, Illinois liquor store. Defendant received a 15 year sentence to be served consecutively to two other State sentences defendant is currently serving. He appeals. We affirm.
Defendant argues that his conviction must be reversed because the State failed to grant him a speedy trial as is required by constitutional and statutory law. The State replies that defendant has waived this claim because he failed to raise it in the circuit court and neglected to include it in his post-trial motion. Although defendant failed to argue this claim in the circuit court, we will address the issue on the merits because defendant contends on appeal that his failure to raise the issue was the result of the ineffectiveness of his trial counsel.
Both the federal and the state constitutions guarantee an accused the right to a speedy trial. (U.S. Const. amends. vi, xiv; Ill. Const. 1970, art. I, § 8; see Klopfer v. North Carolina (1967), 386 U.S. 213, 18 L. Ed. 2d 1, 87 S. Ct. 988.) An additional, statutory right can also be found in section 103-5 of the Code of Criminal Procedure of 1963, which specifies periods of time within which an accused must be brought to trial. (Ill. Rev. Stat. 1987, ch. 38, par. 103-5.) Although the constitutional and statutory provisions address similar concerns, the rights established by them are not necessarily coextensive. ( People v. Richards (1980), 81 Ill. 2d 454, 410 N.E.2d. 833, 43 Ill. Dec. 700.) Section 103-5 provides in pertinent part:
"(a) Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 daysfrom 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 * * *.
For purposes of computing the 160 day period under this subsection, every person who was in custody for an alleged offense and demanded trial and is subsequently released on bail or recognizance and demands trial, shall be given credit for time spent in custody following the making of the demand while in custody. Any demand for trial made under this provision shall be in writing; and in the case of a defendant not in custody, the demand for trial shall include the date of any prior demand made under this provision while the defendant was in custody."
(Ill. Rev. Stat. 1987, ch. 38, pars. 103-5(a), (b).) The supreme court has recognized that subsections (a) and (b) differ in several material respects. ( People v. Garrett (1990), 136 Ill. 2d 318, 324, 555 N.E.2d. 353, 144 Ill. Dec. 234.) The 120-day period of subsection (a) begins to run automatically when a defendant is taken into custody, and no demand for trial is necessary. ( People v. Garrett, 136 Ill. 2d at 324.) On the other hand, a written demand for trial is required under subsection (b), and the period does not begin to run until that demand is made. ( People v. Garrett, 136 Ill. 2d at 324.) Our courts have construed these provisions liberally, and each case must be decided on its own facts. ( People v. Reimolds (1982), 92 Ill. 2d 101, 106, 440 N.E.2d 872, 65 Ill. Dec. 17.) Any delay occasioned by the defendant will suspend, temporarily, for the time of the delay, the time period within which defendant must be tried. ( People v. Smith (1991), 207 Ill. App. 3d 1072, 566 N.E.2d 797, 152 Ill. Dec. 920, appeal denied, 139 Ill. 2d 603, 575 N.E.2d 921.) In computing the period of delay, the first day is excluded and the last day is included in the calculation. People v. Grant (1982), 104 Ill. App. 3d 183, 432 N.E.2d 1129, 60 Ill. Dec. 230.
Both defendant and the State use the 120-day term in analyzing whether defendant was tried in a timely fashion. However, in order to be discharged under the 120-day term, a defendant must have been in custody in connection with the charge for which he subsequently was tried. ( People v. Adams (1982), 106 Ill. App. 3d 467, 470, 435 N.E.2d 1203, 62 Ill. Dec. 231, appeal denied 91 Ill. 2d 572.) In the present case, defendant spent little time in custody for the charges at issue here. The record indicates that defendant was arrested for the Zawada robbery on September 3, 1986. Three days later he was released on bond. While on bond, defendant was arrested on two unrelated armed robbery charges and again was released on bond. On December 4, 1986, defendant's bond was revoked in the Zawada casedue to his subsequent arrest. At the December 23, 1986 hearing on defendant's unsuccessful motion for reconsideration of the revocation, defendant, then in custody, demanded trial. On February 6, 1987, this court reversed the circuit court's bond ruling and ordered defendant to post an additional bond in the Zawada case. Defendant did so and was released from custody. In August 1987, defendant was arrested for the armed robbery of a fast food restaurant. Defendant failed to post bond for that robbery and was taken into custody on those charges. On October 8, 1987, defendant pleaded guilty to all the unrelated armed robbery charges pending against him and was sentenced to consecutive prison terms of 18 and 10 years. *fn1 As the foregoing reveals, once this court reversed the circuit court's bond revocation, defendant was no longer in custody for the Zawada robbery. It was defendant's inability to post bond in the fast food robbery which rendered him susceptible to incarceration on that charge until October 8, when he pleaded guilty to the unrelated robberies pending against him. For these reasons, the 120-day term is inapplicable to the issue presented here because defendant was not in custody for the Zawada robbery.
Additionally, both the State and defendant appear to agree that October 9, 1987 is the date from which any statutory term must be counted. Presumably, the parties have settled upon this date because they believe that defendant was in custody for the Zawada robbery as of that time. Actually, defendant's bond in the Zawada case was still in effect at that time. However, as noted above, defendant was in custody on October 9 pursuant to his conviction of and sentences for the three unrelated armed robberies. During the period in question, defendant was in various correctional centers throughout Illinois pursuant to those sentences. This fact is important. A person committed to the Department of Corrections with a charge pending against him in any county in the State, is subject to the 160-day speedy trial period of section 103-5(b). ( People v. Garrett, 136 Ill. 2d at 330.)
In such a situation, section 3-8-10 of the Unified Code of Corrections governs, and the speedy trial term does not begin to run until defendant files a speedy trial demand. (Ill. Rev. Stat. 1987, ch. 38, par. 1003-8-10; see also People v. Garrett, 136 Ill. 2d at 330; People v. Freeland (1981), 103 Ill. App. 3d 94, ...