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10/23/96 JOHNNY HENDON v. ILLINOIS DEPARTMENT

October 23, 1996

JOHNNY HENDON, PETITIONER-APPELLANT,
v.
ILLINOIS DEPARTMENT OF CORRECTIONS, RESPONDENT-APPELLEE.



Appeal from the Circuit Court for the 10th Judicial Circuit, Peoria County, Illinois. No. 72--CF--4290. Honorable Robert Cashen, Judge, Presiding.

Released for Publication December 11, 1996.

Present - Honorable William E. Holdridge, Presiding Justice, Honorable Kent Slater, Justice, Honorable John F. Michela, Justice. Justice Slater delivered the opinion of the court. Michela, J., concurs. Presiding Justice Holdridge, dissenting.

The opinion of the court was delivered by: Slater

The Honorable Justice SLATER delivered the opinion of the court:

The petitioner, Johnny Hendon, filed a petition for habeas corpus against the respondent, Illinois Department of Corrections (IDOC). The petitioner argued that he should be discharged from his sentence of incarceration because an unreasonably long time had elapsed between his conviction and the imposition of sentence. The trial court denied the petition. We affirm.

The petitioner was convicted of rape. On August 23, 1973, he was sentenced to serve not less than 4 years nor more than 20 years in prison. He appealed his conviction. During the pendency of the appeal, on December 11, 1974, the petitioner was released on an appeal bond.

This court affirmed the petitioner's conviction on November 28, 1975, ( People v. Hendon, 33 Ill. App. 3d 745, 338 N.E.2d 472 (1975)), and the Illinois Supreme Court denied his petition for leave to appeal on March 25, 1976. The appellate court's mandate was issued on April 19, 1976, and was filed by the Peoria County Circuit Clerk's Office the following day.

No further action was taken on this matter until February 8, 1982, when the petitioner's appeal bond was returned to him. On October 6, 1989, the State filed a motion requesting that the petitioner be directed to report to the Peoria County Jail for transport to IDOC. A warrant for the petitioner's arrest was issued on October 11, 1989. However, he was not taken into custody until August 8, 1991. He was released on bond until September 5, 1991, when he was remanded to IDOC to serve the remainder of his sentence.

On October 20, 1992, the petitioner filed the instant petition for habeas corpus. In his petition, he claimed that he should be released from prison because the delay in taking him into custody waived the State's right to lawfully incarcerate him. Thereafter, the State filed a motion to dismiss the petition.

When no action had been taken on his habeas petition by July 1994, the petitioner filed a petition for writ of mandamus seeking to force the circuit court to act. He alleged that the unreasonable delay between his conviction and the imposition of sentence entitled him to discharge. On July 7, 1994, the circuit court dismissed the petitioner's petition for writ of mandamus and denied his habeas petition.

On appeal, the petitioner contends that the trial court erred in summarily dismissing his habeas petition. He claims that he was entitled to an evidentiary hearing to determine: (1) whether he received notice of the issuance of the appellate court's mandate; and (2) whether his due process rights were violated by the lengthy delay.

A defendant released on an appeal bond has a duty to remain apprised of the status of his appeal. People v. Santos, 146 Ill. App. 3d 818, 497 N.E.2d 374, 100 Ill. Dec. 396 (1986). Once the mandate of the appellate court has been issued, it is incumbent upon the defendant to surrender himself to serve his sentence. Walker v. Hardiman, 116 Ill. 2d 413, 507 N.E.2d 849, 107 Ill. Dec. 696 (1987); Crump v. Lane, 117 Ill. 2d 181, 510 N.E.2d 893, 109 Ill. Dec. 825 (1987).

In the case at bar, the lengthy delay between the defendant's conviction and his incarceration was not caused by any failure on the part of the State. The delay was caused by the defendant's failure to keep abreast of developments in his case and to turn himself over to authorities upon the issuance of the appellate court mandate. ...


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