Appeal from Circuit Court of Macoupin County Nos. 96DT168; 96TR3688; 96TR3689 Honorable Dennis L. Schwartz, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Cook
On September 15, 1996, defendant Samuel Huff was charged with failure to reduce speed to avoid an accident (625 ILCS 5/11-601(a) (West 1996)), failure to wear seat belt (625 ILCS 5/12-603.1 (West 1996)), and driving under the influence of alcohol (625 ILCS 5/11-501(a)(2) (West 1996)).
On October 15, 1996, defense counsel Ted E. Barylske filed the following pleading. The pleading was a preprinted form, with the name of the defendant, case numbers, and other information handwritten in. The pleading was signed by Barylske. "ENTRY OF APPEARANCE, PLEA OF NOT GUILTY,
AND DEMAND FOR SPEEDY TRIAL Comes now Ted E. Barylske, and enters his appearance as attorney of record for the [d]efendant herein and enters a plea of Not Guilty on behalf of said [d]efendant. The [d]efendant, by his attorney, further demands a jury trial of the above styled cause within 120 days from the date he was taken into custody.
In the event that the [d]efendant was not taken into custody or posts a bond and is released from custody at any point after his arrest in the above styled cause, whether prior or subsequent to the filing of this [d]emand, he further demands a jury trial of the above styled cause within 160 days of the date of this [d]emand."
Jury trial was scheduled for February 19, 1997. On either February 13 or 19, 1997, defense counsel made an oral motion to continue the jury trial. The cases were continued to the "next jury," which had been previously scheduled for May 5, 1997. The cases did not go to trial on that date, and on July 14, 1997, defense counsel filed a motion to dismiss, alleging violation of defendant's right to a speedy trial and alleging that the circuit clerk set the cases for July 28, 1997, instead of May 5, 1997. That may have been done because the May calendar was full. The trial court granted the motion to dismiss.
On appeal, this court reversed and remanded for further proceedings, citing our previous decision in People v. Ground, 257 Ill. App. 3d 956, 629 N.E.2d 783 (1994). People v. Huff, No. 5-97-0562, slip order at 5-7 (June 3, 1998) (unpublished order under Supreme Court Rule 23). In Ground, we were faced with a situation where defendant's counsel filed a document entitled "ENTRY OF APPEARANCE," which contained the following paragraph: "Defendant having by these presents waived arraignment hereby requests immediate trial by jury." Ground, 257 Ill. App. 3d at 957, 629 N.E.2d at 784. We characterized the document as an attempt on the part of defendant to camouflage his speedy trial demand by burying it within another motion. We concluded that the demand for speedy trial was insufficient, and we laid down some rules. We held that a defendant's demand for speedy trial is sufficient only when two requirements are met: (1) the title or heading must say that the defendant "demands a speedy trial," and (2) the body of the pleading must make explicit reference to section 103-5(b) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/103-5(b) (West 1996)). Ground, 257 Ill. App. 3d at 959-60, 629 N.E.2d at 785-86.
In our previous order in this case we recognized there was no evidence that defense counsel was attempting to mislead the trial court or the State with his demand. The title of the demand plainly stated it was a demand for a speedy trial. However, the body of the pleading included no citation to section 103-5 of the Code. We were also critical of the contingent request for trial within 120 days of the date that defendant was taken into custody, if he was in fact taken into custody. Although the demand caused no confusion, we refused to depart from the "rules" we laid down in Ground. "Making exceptions to these requirements based on the facts of a particular case would soon result in the eradication of the rule." Huff, slip order at 6-7.
On remand, defendant, through attorney Barylske, again moved to dismiss the charges, this time alleging that he had received ineffective assistance of counsel when Barylske failed to prepare a proper speedy trial demand. The trial court granted the motion and dismissed the charges. The State appeals, arguing that Barylske's allegedly ineffective assistance was not a proper basis for dismissal under section 114-1(a) of the Code (725 ILCS 5/114-1(a) (West 1998)), and the court erred in its conclusion that Barylske provided constitutionally ineffective assistance.
We first consider the extent to which we are bound by our previous Rule 23 order in this case. Res judicata and collateral estoppel do not apply here because we are dealing with the same case, not relitigation of the same or a similar cause of action in a subsequent proceeding. See Heller Financial, Inc. v. Johns-Byrne Co., 264 Ill. App. 3d 681, 694, 637 N.E.2d 1085, 1094 (1994) (citing cases). Law of the case might apply here. However, the "law of the case" doctrine would not preclude reconsideration of an earlier judge's order if the facts before the court changed or error or injustice were manifest. People v. Williams, 138 Ill. 2d 377, 392, 563 N.E.2d 385, 391-92 (1990). Just as a trial court can reconsider its own orders at any time before it finally loses jurisdiction, this court can reconsider its orders. "Absent *** exceptional circumstances, the appellate court should decide all legal questions correctly without regard to earlier decisions by the court." A. Vestal, Law of the Case: Single-Suit Preclusion, 1967 Utah L. Rev. 1, 15 (1967). "[I]t would seem that if on second appeal we thought our earlier opinion was erroneous, we ought sensibly to set ourselves right, rather than to invite reversal above." White v. Higgins, 116 F. 2d 312, 317 (1st Cir. 1940). Of course, the trial court did not dismiss the complaint here because our earlier order was wrong, but we may affirm the circuit court's decision on any ground supported by the record. People v. Brownlee, 186 Ill. 2d 501, 511, 713 N.E.2d 556, 562 (1999).
Section 114-1(a) of the Code lists 11 grounds upon which a court may dismiss charges against a defendant, and ineffective assistance of counsel is not among them. See 725 ILCS 5/114-1(a) (West 1996). Nevertheless, trial courts may dismiss charges for reasons other than those listed in section 114-1(a) when failure to do so will effect a deprivation of due process or result in a miscarriage of justice. People v. Fassler, 153 Ill. 2d 49, 58, 605 N.E.2d 576, 580 (1992).
To sustain a claim of ineffective assistance of counsel a showing must be made that (1) counsel made errors so serious that he was not functioning as the "counsel" guaranteed by the sixth amendment and (2) defendant was prejudiced. People v. Evans, 186 Ill. 2d 83, 93, 708 N.E.2d 1158, 1163-64 (1999). An argument could be made that a denial of speedy trial can never amount to a serious error or a miscarriage of justice, that defendant can still receive a trial on the merits even when that trial is delayed. Nevertheless, the legislature has seen fit to require the State to try defendants who are not incarcerated within 160 days of their demand for trial. 725 ILCS 5/103-5(b) (West 1996). A defendant has a constitutional right "to a speedy and public trial." U.S. Const., amend. VI. We cannot agree that denial of defendant's statutory right to speedy trial is a matter of little moment. Assuming that counsel's drafting of the demand for speedy trial was so deficient that defendant lost his statutory right, defendant has a legitimate argument that his counsel was ineffective. It should not be difficult to draw a demand for speedy trial. The trial court acted within its discretion in determining that counsel's error here was a serious one and that defendant was prejudiced.
We are uncomfortable with our previous Rule 23 order in this case. Certainly a defendant should not be allowed to bury a speedy trial demand in a pleading, but that is not the case here. The facts of the particular case are important. Substantial compliance with section 103-5 is sufficient. Ground should be read as a legitimate response to a real problem, not as a trap for the unwary, or a device by which State's Attorneys may ignore known speedy trial demands. Ground did not prohibit speedy trial demands with "contingent terms," such as the one employed here, which demanded trial within 120 days if defendant were in custody, and within 160 days if he were not. Such a demand makes sense, as it anticipates future events, for example where a defendant who had ...