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03/29/96 PEOPLE STATE ILLINOIS v. SERGIO ANDRADE

March 29, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
SERGIO ANDRADE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Bertina Lampkin, Judge Presiding.

The Honorable Justice Rakowski delivered the opinion of the court: Zwick, P.j., and McNAMARA, J., concur.

The opinion of the court was delivered by: Rakowski

The Honorable Justice RAKOWSKI delivered the opinion of the court:

Following a jury trial in February 1994, defendant was convicted of unlawful delivery of more than 15 grams but less than 100 grams of a controlled substance and sentenced to nine years' imprisonment. This is defendant's second appeal. Defendant was first tried in May 1991, which resulted in a mistrial. He appealed and we affirmed. Defendant now appeals his conviction and sentence following his second trial arguing: (1) he is entitled to discharge under section 103-5 of the Code of Criminal Procedure of 1963 (the Speedy Trial Act) (725 ILCS 5/103-5 (West 1994)); (2) the trial court abused its discretion in admitting evidence of other crimes; and (3) his sentence of nine years is excessive. For the following reasons, we affirm.

I. SPEEDY TRIAL ACT

Defendant first contends that the trial court erred in denying his motion for discharge pursuant to the Speedy Trial Act (725 ILCS 5/103-5

Page 295

(West 1994)). The Act provides in part that "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." 725 ILCS 5/103-5(a) (West 1994).

Defendant was arrested on July 23, 1990. He was charged with two counts of unlawful delivery of a controlled substance for two separate transactions, which occurred on March 23, 1989, and on May 17, 1989. The case was continued until September 26 on the State's motion. This constituted 65 days. *fn1 Defendant was arraigned on September 26 and sought a continuance until October 2. By agreement, the case was continued until January 30, 1991, at which time defendant demanded trial. The case was again continued at the State's request until March 26. This constituted 55 days. Thus, we agree with the trial court that March 26, 1991, was the 120th day. On March 26, defendant's counsel did not appear in court and the case was continued until April 19, with the time attributable to defendant. On April 19, now the 120th day, both parties appeared and defendant again demanded trial. The case was continued to May 16. The parties dispute which side should be charged with this time.

On May 16, defendant filed a motion for discharge pursuant to the Speedy Trial Act. The court granted the State a one-day continuance to respond to the motion. The State nol-prossed the count relative to the sale on March 23, 1989. On May 17, the court heard the defendant's motion to discharge and denied it, finding that the delay from April 19 to May 16 was attributable to defendant because he agreed to a continuance. The court then granted the State a continuance to May 21 pursuant to section 103-5(f) because defendant caused a delay within 21 days of the end of the term. On May 21, the State filed a motion to use proof of other crimes. The court continued the case to May 22. On May 22, the court conducted a hearing on the State's motion and granted it. It then continued the case to May 23. On May 23, the court continued the case to May 28 by agreement. Jury selection and defendant's first trial began on May 28.

Defendant presents three separate allegations of error in arguing entitlement to discharge pursuant to the Speedy Trial Act.

A. APRIL 19, 1991, TO MAY 16, 1991, CONTINUANCE

Defendant first argues that the continuance from April 19 to May 16, 1991, was not attributable to him but instead to the court because of its crowded docket.

At the hearing on April 19 the following occurred:

"MR. DIAMOND-FALK [Defense counsel]: Thank you. Your Honor, we are ready to have this case set for trial. ***

THE COURT: All right, counsel. I know you were demanding trial on the last Court date, what is your position today?

MR. DIAMOND-FALK: We would also continue the demand.

THE COURT: We'll set this for May 3.

MR. DIAMOND-FALK: Would it be possible to have the 1st or 2nd --

THE COURT: No, I won't be here and not the 9th because it is motion state. It would have to be by agreement, if you want it other than days I am selecting I have 2 or 3 juries every week, every day.

MR. DIAMOND-FALK: If we could have --

I would be agreeable to May 9 to the 17th, any date those 2 weeks and I am sure the State will endeavor to bring this case to trial.

THE COURT: It is not that, we have 2 or 3 juries every week.

MR. DIAMOND-FALK: May 3rd is the first date.

MR. DIAMOND-FALK: We'll demand then May 3 ***.

MR. DIAMOND-FALK: I have a motion set that morning in front of Judge Berman in chancery.

THE COURT: Counsel you can't do it at that time?

MR. DIAMOND-FALK: When is the next available date[?].

THE COURT: We could try May 16. ***

MR. DIAMOND-FALK: Thank you, Judge.

THE COURT: Wait a second, by agreement, May 16, I have indicated motion State to May 3rd[] but it is ...


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