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People v. Wynn

June 02, 1998

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,
v.
KEVIN DEON WYNN, DEFENDANT-APPELLEE. THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,
v.
BRIAN J. BLUE, DEFENDANT-APPELLEE. THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,
v.
ROSIE GOUARD, DEFENDANT-APPELLEE. THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,
v.
JASON ALLEN BOGGESS, DEFENDANT-APPELLEE. THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,
v.
BRIAN M. CORNETT, DEFENDANT-APPELLEE.



The opinion of the court was delivered by: Justice Steigmann

Appeal from Circuit Court of Vermilion County.

No. 97CM209, No. 97CM211, No. 97CM176, No. 97CM227, No. 97CM226

Honorable Gordon R. Stipp, Judge Presiding.

These consolidated appeals involve five defendants, Brian Cornett, Kevin Wynn, Brian Blue, Rosie Gouard, and Jason Boggess, and their motions to dismiss the charges against them based upon alleged violations of section 103-5(b) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/103-5(b) (West 1996)) (a provision of the statute, commonly referred to as the Speedy Trial Act, that requires the trial of a defendant released from custody on bail or recognizance within 160 days of the defendant's demand for trial). The pertinent facts of each defendant's case are essentially the same. The trial court granted each defendant's motion to dismiss, and the State appeals. We affirm.

I. BACKGROUND

A. Case No. 4-97-1053

In March 1997, the State charged defendant Cornett by information with criminal trespass to real property (720 ILCS 5/21-3(a) (West 1996)). At defendant's March 1997 arraignment, the trial court, Judge Borbely, set a pretrial hearing for June 3, 1997, and defendant's trial for October 27, 1997. The court also released defendant on bail. On March 26, 1997, defendant filed a speedy trial demand pursuant to section 103-5(b) of the Code.

In an April 11, 1997, memorandum letter, Judge Borbely informed the prosecutor and defense counsel of the Judge's upcoming "Vacation and Scheduling." That letter stated, in pertinent part, as follows:

"Based on Andy's school schedule, I am now able to give you a few more of my vacation dates as follows:

5. June 3, 1997. Pre-trials scheduled for the morning can be continued to the trial date for each case. There are no hearings scheduled for the afternoon.

I would further suggest that notice of the foregoing be handled as follows:

b) State to send notice regarding pre-trials which are continued from May 13, May 14, June 2, June 3, and June 4."

On June 3, 1997, the prosecutor showed up for the pretrial proceeding; however, neither Judge Borbely, defense counsel, nor defendant appeared. On October 24, 1997, defendant filed a motion to dismiss the charges pursuant to section 103-5(b) of the Code, alleging that the State had not brought him to trial within 160 days from the date he filed his speedy trial demand (March 26, 1997).

At the November 1997 hearing on that motion, defense counsel argued, in part, that the delay could not be attributed to defendant because the June 3, 1997, pretrial hearing could not "be called without a [j]udge." After considering counsel's arguments, Judge Stipp, the trial Judge conducting the hearing on the motion, found that (1) no delay was attributable to defendant; and (2) 215 days had elapsed between March 26, 1997, and his October 27, 1997, trial date. Judge Stipp thus granted defendant's motion to dismiss.

B. Case No. 4-97-0926

In March 1997, the State charged defendant Wynn by information with criminal trespass to real property and criminal damage to property (720 ILCS 5/21-3, 21-1(1)(a) (West 1996)). At defendant's March 1997 arraignment, Judge Borbely set a pretrial hearing for June 3, 1997, and defendant's trial for September 26, 1997. The Judge also released defendant on bail.

On March 19, 1997, defendant filed a speedy trial demand pursuant to section 103-5(b) of the Code. In an April 11, 1997, memorandum letter, Judge Borbely informed the prosecutor and defense counsel of the Judge's upcoming vacation schedule (as earlier set forth).

On June 3, 1997, the prosecutor and defendant showed up for the pretrial proceeding; however, neither Judge Borbely nor defense counsel appeared. On September 25, 1997, defendant filed a motion to dismiss the charges pursuant to section 103-5(b) of the Code, alleging that the State had not brought him to trial within 160 days from the date he filed his speedy trial demand (March 19, 1997).

At the hearing on the motion, the prosecutor argued that the delay between June 3, 1997, and September 26, 1997, should be attributed to defendant because defense counsel was absent from the June 3, 1997, pretrial proceeding. Defense counsel argued that the delay should not be attributed to defendant because Judge Borbely was not present for that pretrial ...


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