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12/16/94 PEOPLE STATE ILLINOIS v. RICHARD SMITH

December 16, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
RICHARD SMITH, DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. THE HONORABLE LESTER D. McCURRIE JUDGE PRESIDING.

The Honorable Justice Gordon delivered the opinion of the court: Cousins, Jr., P.j., and McNULTY, J., concur.

The opinion of the court was delivered by: Gordon

JUSTICE GORDON delivered the opinion of the court: *fn1

BACKGROUND

On November 20, 1990, the circuit court of Cook County convicted the defendant-appellant Richard Smith of home invasion, armed robbery, armed violence, residential burglary and possession of a stolen motor vehicle. On December 19, 1990, the court sentenced him to a twenty-five year term of imprisonment for the home invasion, twenty-five years for the armed robbery, and seven years for the possession of a stolen motor vehicle. The court ordered these sentences to run concurrently but did not sentence the defendant for the residential burglary and armed violence convictions. For the reasons set forth below, we affirm both the defendant's conviction and his sentence.

FACTS

The procedural history of this case is not disputed. The defendant was arrested pursuant to an arrest warrant on May 25, 1989. On June 21, 1989, the State filed an information against him, charging him with home invasion, armed robbery, armed violence, residential burglary, and possession of a stolen motor vehicle. We note here that the defendant has continuously remained in custody since his arrest.

The Cook County Public Defender represented the defendant until December 18, 1989, when private counsel filed an appearance on his behalf. On that date, the State filed an answer to the defendant's discovery request which indicated that the State might call Evelyn Gonzalez and Yvette Stoll as witnesses. Defendant's case was then continued by agreement to February 5, 1990, and then again, on the defendant's motion, to March 12, 1990.

On March 12, 1990, the defendant answered ready for trial. On the State's motion, the court continued the case, setting April 12, 1990 as the trial date. On April 12, 1990, the State indicated that it was not ready for trial. The court then continued the case on the State's motion until May 4, 1990. On May 4, 1990, the defendant again answered ready for trial but the State again requested a continuance. The State explained that it was unable to locate two witnesses, Gonzalez and Stoll, whose testimony was crucial to the prosecution, and therefore was not ready for trial. The court then continued the case on the State's motion until May 29, 1990.

On May 29, 1990, the State filed a motion for a sixty day extension of the speedy trial term pursuant to the Speedy Trial Act, which limits the permissible interval between arrest and trial for prisoners in custody to one hundred twenty days. (See Ill. Rev. Stat. 1989, ch. 38, par. 103-5 now codified at 725 ILCS 5/103-5 (West 1992).) On May 29th, 108 days of the speedy trial term had elapsed.

In its motion for an extension the State averred that beginning on April 19, 1990, investigators unsuccessfully attempted to telephone Gonzalez and Stoll and unsuccessfully attempted to serve them subpoenas at their last known addresses. An investigator also checked arrest records, the Illinois Secretary of State, the Illinois Department of Public Aid, and the United State's Post Office, all without success. The motion further stated that on May 23, 1990, the investigators discovered that Yvette Stoll's son attended elementary school in Plymouth, Indiana. The principal of the elementary school and the superintendent of schools for Plymouth were then requested to provide Yvette Stoll's address and telephone number. Those officials declined to do so without a court order.

The court, over the defendant's objection, granted the State's motion for a sixty day extension. It continued the case to June 8, 1990, for a status hearing on the State's efforts to locate Gonzalez and Stoll, and set a tentative trial date of July 10, 1990. The court also issued a written order directing the Plymouth, Indiana school officials to release any information helpful in locating Yvette Stoll.

On June 8, 1990, the State informed the court that Evelyn Gonzalez and Yvette Stoll had been located and that the State would be ready for trial on the previously reserved date of July 10, 1990. The court continued the case, on the State's motion, until July 10, 1990. The defense filed a motion for discharge under the Speedy Trial Act at the June 8th hearing but the court deferred argument on that motion.

On July 10, 1990 the defendant advised the court that his attorney was unable to appear and the court thereupon continued the matter until July 12, 1990. On July 12, 1990, the defendant's lawyer informed the court that on July 3, 1990, he received from the State notice of a report dated June 8, 1989, indicating that a latent fingerprint recovered from inside the victim's residence, lifted from a pair of pruning shears, matched the defendant's fingerprints. The State acknowledged that it had not received that report until July 2, 1990. The defendant then requested a continuance to prepare a motion to exclude any fingerprint evidence and to prepare a new defense. The court continued the case, by agreement, until July 23, 1990 for a status hearing and set August 27, 1990 as a tentative trial date.

On July 23, 1990, the court heard argument of the defendant's motion for dismissal based on violation of the Speedy Trial Act which he filed on June 8, 1990. The court then denied that motion. Also on July 23, the defendant filed an additional motion for discharge because of a violation of the Speedy Trial Act and to exclude the recently discovered fingerprint evidence. The court denied that motion also. The case was then continued, by agreement, to the scheduled trial date of August 27, 1990. On August 27, 1990, the defendant's lawyer requested a continuance to have the defendant evaluated for post-traumatic stress disorder. The court subsequently continued the case, on the defendant's motion, until October 17, 1990 at which time trial began.

[The following material is nonpublishable under Supreme Court Rule 23.]

[The preceding material is nonpublishable under Supreme Court Rule 23.]

On appeal, the defendant raises the following contentions: (1) that the circuit court abused its discretion in granting the State's motion for a sixty day extension under § 103-5(c) of the Speedy Trial Act; (2) that even if the circuit court properly exercised its discretion in granting an extension, the State nevertheless violated the Speedy Trial Act because the July 12th and July 23rd 1990 continuances were not properly chargeable to him; (3) that the State failed to prove his guilt beyond a reasonable doubt; and (4) that the circuit court abused its discretion at sentencing by considering that he forcibly entered the victim's residence and that he was armed with a weapon at the time of the offense as factors in aggravation. *fn2

Motion for Continuance

We note at the outset that the defendant waived review of the propriety of the circuit court's grant of the State's motion for a sixty day continuance under the Speedy Trial Act by failing to specifically challenge the grant of that motion in his post-trial motion. (See People v. Enoch (1988), 122 Ill. 2d 176, 185-90, 522 N.E.2d 1124, 1129-31, 119 Ill. Dec. 265; People v. Alcazar (1988), 173 Ill. App. 3d 344, 354, 527 N.E.2d 325, 331, 122 Ill. Dec. 827.) His post-trial motion did include the following clause:

"24. The defense reasserts and reserves all motions, objections and exceptions that have been made in the course of the proceedings, before and during and after the trial."

Such general catch-all clauses in the post-trial motion are insufficient to preserve an issue for appellate review. (See People v. Jones (1992), 240 Ill. App. 3d 213, 226, 608 N.E.2d 266, 276, 181 Ill. Dec. 193; People v. Buchanan (1991), 211 Ill. App. 3d 305, 312, 570 N.E.2d 344, 350, 155 Ill. Dec. 831.) However, as discussed below, even if the defendant had preserved this issue for appeal, we would not have found that the circuit court abused its discretion in granting an extension of the speedy trial term.

The defendant argues that the circuit court abused its discretion in granting the State's motion for a sixty day extension of the one hundred twenty day speedy trial term. In support he states that the State failed to act diligently in attempting to locate Gonzalez and Stoll and that its motion for an extension under § 103-5(c) "never ...


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