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June 25, 1997


Appeal from the Circuit Court of Cook County. 87 CR 473. Honorable Colleen McSweeney-Moore, Judge Presiding.

As Corrected July 16, 1997. Released for Publication August 5, 1997.

The Honorable Justice Cahill delivered the opinion of the court. Cousins, P.j., and Leavitt, J., concur.

The opinion of the court was delivered by: Cahill

JUSTICE CAHILL delivered the opinion of the court:

We review dismissal of a criminal information charging defendant, Porfirio Torres, with delivery of cocaine. The information was filed on January 13, 1987, and dismissed over eight years later on September 11, 1995. For much of that time Torres was in Mexico. The trial court found that the State failed to provide Torres a speedy trial as required by the Illinois and United States Constitutions, and failed to comply with the Agreement on Detainers in the Illinois Unified Code of Corrections (730 ILCS 5/3-8-9 (West 1994)). We reverse and remand with directions to reinstate the information.

The events that led to dismissal of the information in this case stretched over eight years.

Torres, a Mexican citizen, entered the United States on a visitor visa in 1977. He came to Chicago, where he married a United States citizen and fathered two children. The Immigration and Naturalization Service (INS) issued a show cause order in February 1983, alleging that Torres was subject to deportation for remaining in the United States longer than allowed under his visa. Then, in October 1983, Torres pled guilty in the circuit court of Cook County to a felony charge of perjury on a voter's registration application. Though not incarcerated for the offense, Torres was ineligible, as a result of the felony conviction, to apply for legal residency or amnesty.

The record is silent for three years. But we know that Torres was in Cook County on December 3, 1986. He was arrested in Cook County on that date by the Metropolitan Law Enforcement Group and charged with delivery of cocaine having a street value of $136,000. The next day, at a preliminary hearing, a finding of probable cause was entered and bond was set at $75,000 (a "D" bond requiring a 10% deposit). Torres demanded trial.

Torres posted bail on the evening of December 18, 1986, but was held at the Cook County jail until the following day, when he was transferred to the custody of the INS under a federal warrant issued on that date. The warrant was based on the allegations of the show cause order entered in 1983. Three days later Torres posted bond on the federal charges. He was now free on bonds on both federal and state charges.

The record over the next two years established the following: Torres or his lawyer appeared in federal court on January 22, May 18, September 9, and November 3, 1987. Torres asked for continuances of the federal case to pursue a collateral attack on the state perjury conviction of 1983. Meanwhile the state criminal case was continued by agreement 10 times between January and December. So passed 1987.

1988 began as 1987, when on February 16, Torres was granted another continuance in federal court until after a state court date of March 16. The federal judge continued the matter until March 29.

At the March 29 hearing, Torres told the federal judge that his state charge was set for trial on April 26. The judge told Torres he would allow him voluntary departure, instead of deportation, so Torres son could finish school and Torres could wind up his criminal matter. He then entered an order allowing Torres to leave the country voluntarily no later than July 1.

Neither Torres nor his attorney appeared on April 26 in the state matter. The assistant State's Attorney told the court that Torres' attorney was on trial and agreed to a June 8 continuance. It was later learned that Torres left the country on or about June 4, 1988.

The story is not quite over. A lawyer for Torres appeared on June 8. He represented that he had been in contact with Torres within the last week and that Torres might have mistakenly gone to another courtroom on the morning of June 8. The trial court entered a bond forfeiture but did not issue a warrant. The court set June 23 for entry of judgment on the bond and directed the lawyer to bring Torres before the court earlier if possible. On June 23 the lawyer appeared and stated that Torres was in Mexico "at the request of the INS." He did not inform the trial court that Torres had been granted a voluntary departure by the federal court to occur no later than July 1 so his son could finish school and he could wind up his state criminal charges. The trial court ordered notice of the bond ...

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