Appeal from Circuit Court of Vermilion County No. 00CF239 Honorable Claudia S. Anderson, Judge Presiding.
The opinion of the court was delivered by: Justice Knecht
Released for publication.
On February 1, 2000, defendant, Ray Lamar Hillsman, was arrested on various charges and the Illinois Department of Corrections (DOC) issued a parole hold. On May 22, 2000, the date of defendant's trial, the trial court denied the State's motion to continue because defendant had been in custody for 112 days. The State did not accept the trial court's offer to reschedule the trial for defendant's 120th day of custody. Instead, the State entered a nolle prosequi on the charges and refiled the charges the same day. On October 2, 2000, the date of defendant's trial on the refiled charges, the trial court granted defendant's motion for discharge because the State violated his right to a speedy trial under section 103-5(a) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/103-5(a) (West 1998)). The State appeals, arguing defendant's right to trial within 120 days did not commence because he was in custody on a parole hold. We affirm.
On February 1, 2000, defendant was arrested on the charges of unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 1998)) and obstructing justice (720 ILCS 5/31-4(a) (West 1998)). As a result of defendant's arrest, DOC issued a parole hold. Defendant did not post bond on the February 2000 charges (case No. 00-CF-52) and he remained in custody. The record is silent as to the specific date DOC issued the parole hold and when defendant was remanded to DOC on the parole hold.
Defendant's trial was scheduled for May 22, 2000, which was the 112th day defendant was in custody. On this date, defendant filed a motion to dismiss and a motion in limine. The State moved to continue the case to a date beyond defendant's 120th day in custody, but the trial court denied the State's request. The trial court offered to reschedule defendant's trial to May 30, 2000, which would be defendant's 120th day in custody in case No. 00-CF-0239. The State did not agree to this date and moved to enter a nolle prosequi. The State also indicated it would refile the charges later the same day.
Defendant objected to the State's motion to nol-pros the charges and asserted the State was attempting to circumvent the 120-day rule set forth in section 103-5(a) of the Code. 725 ILCS 5/103-5(a) (West 1998). The trial court allowed the State to nol-pros the charges on the morning of May 22, 2000. Defendant remained in custody on the previously issued parole hold and the State refiled the charges herein (No. 00-CF-0239) later the same day. This time, however, the State allowed defendant to obtain a recognizance bond on the refiled charges; but defendant remained in custody on the parole hold. We note the limited record before us indicates defendant's bond was set at $1 million on the February 2000 charges. The record shows defendant was remanded to DOC after the May 22, 2000, hearing, and a trial date was not set within 120 days.
On October 2, 2000, the date of defendant's trial on the refiled charges, defendant filed a motion for discharge alleging he had been in continuous custody since his February 1, 2000, arrest, a total of 245 days. In support of his motion, defendant argued that at the May 22, 2000, hearing, the State improperly moved to nol-pros the original charges in No. 00-CF-52 and then refiled the charges herein on the same day in an effort to circumvent the 120-day rule. The State was not prepared to address defendant's motion and sought a continuance, which the trial court denied. After the trial court granted a short recess to allow the State time to respond to defendant's motion for discharge, the State simply objected to defendant's motion without providing any legal argument. The trial court found defendant's motion for discharge was "well taken." Accordingly, the court granted the motion and dismissed the charges with prejudice.
The State now appeals, arguing the trial court erred when it granted defendant's motion for discharge because the 120-day speedy-trial term does not commence while a defendant is held on a parole hold. In the alternative, the State argues the trial court abused its discretion when it denied the State's motion to continue. We affirm.
Every person in custody in Illinois for an alleged offense shall be tried within 120 days from the date he or she was taken into custody. 725 ILCS 5/103-5(a) (West 1998). Every person on bail or recognizance shall be tried within 160 days from the date defendant demands trial. 725 ILCS 5/103-5(b) (West 1998). Subsection (b) of section 103-5 also applies to persons committed to any institution, facility, or program of DOC who have untried complaints, charges, or indictments pending in any county of Illinois. 730 ILCS 5/3-8-10 (West 1998).
As a preliminary matter, we note the State's brief mentions defendant apparently never filed a demand for trial. Therefore, because DOC issued a parole hold after defendant's arrest, the State asserts defendant was required to file a demand; then, under section 103-5(b), the State would have had 160 days to try defendant. We will not entertain the State's assertion for two reasons. First, the record before us begins on May 22, 2000, the date the State nol-prossed the original charges and refiled new charges against defendant. Because defendant was originally arrested on February 1, 2000, and the record is silent as to any activity that occurred in the case for nearly four months, we cannot determine whether defendant filed a demand between February 1 and May 22, 2000. Second, the State did not raise the issue of whether section 103-5(b) applied to defendant and whether defendant had a duty to file a demand. Thus, the trial court never had an opportunity to consider the issue. Therefore, because the record is unclear and because the State failed to pursue this issue before the trial court, we will address only the issue of whether the State violated defendant's right to a speedy trial under section 103-5(a). See People v. Williams, 218 Ill. App. 3d 442, 443, 578 N.E.2d 313, 313-14 (1991) (waiver applies to the State as well as to criminal defendants).
The appellate districts appear divided as to whether a defendant's detention on a parole hold as a direct result of his arrest on another charge is a "detention" for purposes of the speedy-trial term. The State cites People v. Daily, 30 Ill. App. 3d 413, 332 N.E.2d 146 (1975) (Fourth District), in support of its position defendant's 120-day speedy-trial term did not run after DOC issued its parole hold. Defendant, however, argues the State's reliance on Daily is weak because the facts in the present case are distinguishable and because other courts have held that a defendant who is held on a parole violation based upon the same charge for which he is later tried, is "in custody" for purposes of computing the 120-day speedy-trial term. People v. Patheal, 27 Ill. 2d 269, 271-73, 189 N.E.2d 309, 310-11 (1963); People v. Manna, 96 Ill. App. 3d 506, 510-11, 421 N.E.2d 542, 546-47 (1981) (Second District); People v. Burchfield, 62 Ill. App. 3d 754, 756-57, ...