Appeal from the Circuit Court of Cook County. No. 09 CR 5911 The Honorable Joseph M. Claps, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Garcia
PRESIDING JUSTICE GARCIA delivered the judgment of the court, with opinion.
Justices McBride and R. Gordon concurred in the judgment and opinion.
¶ 1 The State appeals the circuit court's dismissal of five of six counts of an indictment filed against the out-of-custody defendant Dewayne Hunter. The State originally charged the defendant by information with a single count of possession of cannabis with intent to deliver; the defendant demanded trial and more than 160 days later, the State obtained an indictment, charging the defendant with the cannabis charge and five new, gun-related offenses. The circuit court ruled the five added counts were subject to compulsory joinder with the original cannabis charge. Premised on this ruling, the court held the new and additional charges that were filed after the speedy trial term elapsed were subject to dismissal. However, because the defendant tolled the speedy trial term on the original charge of possession of cannabis with intent to deliver, the State could proceed with the prosecution of that offense.
¶ 2 On de novo review, we conclude that the cannabis charge and the new gun-related offenses were required to be prosecuted in a single prosecution because the cannabis charge and the gun-related charges were based on the same act of constructive possession of the cannabis and the handguns, which the police recovered following the defendant's detention. Under the compulsory joinder-speedy trial rule established by this court in People v. Williams, 94 Ill. App. 3d 241 (1981), the State had 160 days to file the new and additional, gun-related charges against the defendant following his arrest. Once that period elapsed, the protection afforded the defendant under the speedy trial provision barred the State from prosecuting the later-filed, gun-related charges. We affirm.
¶ 4 On October 5, 2008, police officers observed the defendant conducting an apparent drug deal using the vestibule of a building on the 4000 block of West Van Buren Street in Chicago. The officers recovered 10.6 grams of cannabis and one loaded handgun from the vestibule near the defendant. The officers also recovered a second loaded handgun from a staircase in the vestibule, about five feet from where the cannabis and first handgun were recovered. The defendant and two co-defendants were arrested and charged with the cannabis possession only.
¶ 5 On the day following his arrest, the defendant appeared in bond court where he entered a written demand for trial. The case was continued from October 6 to October 29 for a probable cause hearing. On October 29, the case was continued to November 13 on the defendant's motion to retain private counsel.
¶ 6 On November 13, 2008, the preliminary examination judge found probable cause. The defendant was formally charged by information with a single offense of possession of cannabis with intent to deliver. The defendant again filed a written demand for trial. The matter was placed on the trial call, and various continuances were granted with the defendant's agreement.
¶ 7 On March 23, 2009, the State announced its intention to indict the defendant on additional charges. On March 30, 2009, day 176 following the defendant's arrest, the grand jury returned an indictment charging the defendant with six offenses: the original charge of possession of cannabis with intent to deliver (720 ILCS 550/5(c) (West 2008)), four charges of unlawful use of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2008)), and a single charge of armed habitual criminal (720 ILCS 5/24-1.7(a) (West 2008)).
¶ 8 On April 17, 2009, the defendant filed a motion to dismiss the new charges against him, arguing that the compulsory joinder statute (720 ILCS 5/3-3(b) (West 2006)) required the State to charge the defendant with the new and additional gun-related offenses with the original cannabis charge. He asserted that the State's failure to comply with the compulsory joinder statute violated his statutory right to a speedy trial under section 103-5 of the Code of Criminal Procedure of 1963 (725 ILCS 5/103-5(b) (West 2006)) regarding the new and additional charges. In support, his motion quoted People v. Williams, 94 Ill. App. 3d 241, 248-49 (1981): "Where new and additional charges arise from the same facts as did the original charges and the State had knowledge of these facts at the commencement of the prosecution, the time within which trial is to begin *** is subject to the same statutory limitation that is applied to the original charges."
The defendant argued that the speedy trial term applicable to the weapon charges commenced with his arrest on the cannabis charge. Pursuant to Williams, the tolling of the speedy trial term on the possession of cannabis with intent to deliver charge did not toll the speedy trial terms for the new and additional charges. "Continuances obtained in connection with the trial of the original charges cannot be attributed to defendants with respect to the new and additional charges because these new and additional charges were not before the court when those continuances were obtained." Id. Thus, the speedy trial term expired as to the added charges before the return of the new indictment on March 30, 2009. However, the speedy trial term did not expire on the charge of possession of cannabis with intent to deliver because the term tolled when continuances were granted at the defendant's request or with his agreement while only that charge was pending.
¶ 9 The State countered that it was only required to join charges that stemmed from the same "act" under the compulsory joinder statute. The State argued that it was unreasonable to conclude that the act of ...