Appeal from Circuit Court of Champaign County No. 00CF2106 Honorable Thomas J. Difanis, Judge Presiding.
The opinion of the court was delivered by: Justice Cook
Defendant, Johnny L. Colson, was convicted by a jury of committing the offense of aggravated criminal sexual assault (720 ILCS 5/12-14 (West 2000)) and sentenced to 30 years in prison. Defendant appeals, arguing that his speedy-trial rights were violated. See 725 ILCS 5/103-5 (West 2000). We affirm.
Defendant was arrested on November 27, 2000. On that date, defendant had allegedly forced his ex-girlfriend into his car and then taken her to a secluded location, where he battered and raped her. Defendant did not make bond and remained in custody from the time of his arrest until his trial.
The State brought defendant to trial on April 12, 2001, after 135 days of defendant being in custody. Pursuant to section 103-5 of the Code of Criminal Procedure of 1963 (speedy-trial statute), a defendant who remains in custody, as this defendant did, must be brought to trial within 120 days. 725 ILCS 5/103-5(a) (West 2000). When the defendant is in custody, no demand is required to begin the running of the 120-day term. People v. Johnson, 323 Ill. App. 3d 284, 288, 751 N.E.2d 621, 625 (2001). If the defendant in custody is not brought to trial within 120 days, then the defendant must be discharged from custody. 725 ILCS 5/103-5(d) (West 2000).
The speedy-trial statute provides exceptions that suspend the running of the 120-day term, thereby allowing a defendant in custody to be brought to trial beyond 120 days. One exception is when the defendant himself is responsible for the delay. See 725 ILCS 5/103-5(f) (West 2000). Another exception allows the State to move for a continuance for up to an additional 120 days:
"[i]f the court determines that the State has exercised without success due diligence to obtain results of DNA testing that is material to the case and that there are reasonable grounds to believe that such results may be obtained at a later day ***." 725 ILCS 5/103-5(c) (West 2000).
In this case, the State asked for, and was granted, a continuance pursuant to section 103-5(c) to obtain DNA (deoxyribonucleic acid) test results. The grant of a section 103-5(c) continuance extends the 120-day speedy-trial term to a maximum of 240 days. The State brought defendant to trial in 135 days, within the 240-day limit.
Defendant argues on appeal that the trial court abused its discretion in granting the continuance because the State made no showing of due diligence as required by the speedy-trial statute. The State argues that defendant is himself responsible for 26 days of the delay because he requested a continuance, meaning that for purposes of the speedy-trial statute only 109 days accrued and no violation of the statute occurred. The State also argues that even if defendant was not responsible for any delay in bringing the case to trial, the continuance for DNA testing was properly granted.
We begin our analysis by addressing the State's argument that defendant is himself responsible for 26 days of delay because he asked for a continuance. This requires an extensive examination of the proceedings in the trial court regarding the alleged request for continuance.
The pretrial was initially set for January 24, 2001. The proceedings at the January 24, 2001, hearing follow in their entirety:
"[THE COURT]: 2106, Johnny L. Colson.
[MR. BULLOCK (defendant's counsel)]: Your Honor, I believe that should be set for motions tomorrow.
[THE COURT]: Motions tomorrow, 9:30, in F. Defendant's in custody."
The docket entry for the January 24, 2001, hearing states as follows:
"Appearance of the State's Attorney. Suggestion that the [d]efendant is in custody. Motion by [d]efendant for continuance. Motion allotted for hearing 1/25/2001 at 9:30 AM in Courtroom F."
On January 25, 2001, Assistant State's Attorney Elizabeth Dobson filed a written motion for continuance to obtain DNA evidence pursuant to section 103-5(c). The motion contained the following allegations:
"1. The defendant in this case is charged with [a]ggravated [c]riminal [s]exual [a]ssault (class X felony) and has been in custody since November 27, 2000.
2. The defense has indicated a request that the case be continued until the February 21, 2001[,] ...