The opinion of the court was delivered by: Justice McNULTY
Appeal from the Circuit Court of Cook County Honorable Henry Simmons, Judge Presiding
In this case we address a question concerning the effect on the right to a speedy trial of delay in issuing a mandate for retrial. We find that,under the facts of this case, an unexplained delay of 11 months violated the defendant's constitutional rights.
On October 17, 1989, a fire damaged much of William McHugh's tavern. McHugh died the next day from injuries he suffered in the fire. In May 1990 a grand jury indicted defendant, Anthony Crane, for aggravated arson and the murder of McHugh. A jury found defendant guilty as charged and the trial court sentenced him to natural life imprisonment. This court reversed the conviction and remanded for retrial by opinion dated May 28, 1993.
The Illinois Supreme Court denied leave to appeal on October 6, 1993, and the United States Supreme Court denied certiorari on February 28, 1994. The case did not progress until February 2, 1995, when the clerk of this court reissued our mandate. The trial court's statement of Disposition indicates that throughout the appeals process and until retrial, defendant remained incarcerated and "SERVING SENTENCE" on this charge, despite reversal of the conviction.
The trial court received the reissued mandate on February 8, 1995. The prosecution admits it is responsible for the delay from that time until March 15, 1995. The parties dispute responsibility for the postponement to March 21, but defendant admits he agreed to a delay from March 21 until May 31, 1995, when he demanded trial. The prosecution also admits responsibility for postponements, on its motions, from May 31 to July 31, 1995. On that date defendant moved to dismiss the indictment for violation of his constitutional right to a speedy trial. By that time 26 months had elapsed since this court issued the opinion remanding the case for retrial.
At the hearing on September 7, 1995, the prosecutor recounted the appeals process up to February 28, 1994, but she presented no excuse for at least 11 months of the delay, between the denial of certiorari and the reissuance of the mandate. The record shows the United States Supreme Court sent notice of its decision on February 28, 1994, and the prosecutor did not deny timely receipt of that notice. Nor did she present evidence of any appellate judicial proceedings pending in the 11 months preceding issuance of the mandate. The prosecutor argued only that defendant was trying to require the
"State's Attorney's Office to somehow get the case out of the Appellate Court's hands ***.
[Prosecutors] did nothing to deny this defendant his constitutional rights with regards to a speedy trial."
The court, without comment or explanation, denied the defendant's motion to dismiss.
The new jury found defendant guilty as charged. The trial court sentenced him to 75 years in the custody of the Department of Corrections for murder and 30 years, to be served concurrently, for the aggravated arson.
On appeal defendant contends that the court should have granted his motion to dismiss for violation of his constitutional right to a speedy trial. The courts must retry within a reasonable time any defendant subject to a second trial for an offense. People v. Bazzell, 68 Ill. 2d 177, 181, 369 N.E.2d 48 (1977).
"The constitutional right to a speedy trial cannot be defined in terms of a precise period of time. [Citation.] The record in its totality must be examined to ascertain whether the defendant has enjoyed the right guaranteed by the constitution. [Citation.]
*** [I]n deciding whether there has been a breach of the constitutional right of speedy trial four factors should be considered: the length of the delay; the reasons for the delay; the prejudice to the defendant; and whether the defendant may be ...