Appeal from the Circuit Court of Lee County. No. 10-CF-287 Honorable Ronald M. Jacobson, Judge, Presiding.
The opinion of the court was delivered by: Justice Schostok
JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.
Presiding Justice Jorgensen and Justice McLaren concurred in the judgment and opinion.
¶ 1 The State appeals the trial court's dismissal of an indictment against the defendant, Gretchen Totzke, on constitutional speedy-trial grounds. The State contends that the defendant's due process and speedy-trial rights were not violated when it dismissed charges by nolle prosequi and then waited 285 days to recharge her. We determine that the trial court incorrectly applied the speedy-trial test to the delay between the dismissal of charges by nolle prosequi and the filing of the new charge, because due process is the only relevant consideration during such a period. We vacate and remand to allow the trial court to apply the correct tests in determining whether the defendant's speedy-trial or due process rights were violated by the various delays in this case.
¶ 3 On January 7, 2008, the defendant was arrested and charged by complaint with two counts of resisting or obstructing a police officer. 720 ILCS 5/31-1(a), (a-7) (West 2006). Count I alleged that the defendant committed a Class 4 felony when she actively resisted an officer, causing injury to the officer's wrist. Count II alleged that she committed a Class A misdemeanor when she pulled away from the officer as he tried to arrest her. The defendant was released on bail the same day. A public defender was appointed to represent her.
¶ 4 On February 13, 2008, the same counts were charged by information and, on February 21, 2008, a speedy-trial demand was filed. Between that date and February 2009, the case was continued multiple times on the defendant's motion or with her agreement, including to allow her to retain private counsel after the court determined that she was not eligible for a public defender. The defendant initially sought to proceed pro se, but later retained counsel.
¶ 5 On May 11, 2009, the date set for the final pretrial conference, the State sought to continue trial in order to obtain a medical expert concerning the injury to the officer's wrist. The State's motion was granted over the defendant's objection, with counsel noting that a witness for the defense was coming from Colorado and had already purchased a plane ticket. The case was then continued several more times either on the defendant's motion or by agreement until March 2010, with a final pretrial conference set for February 25, 2010.
¶ 6 On February 25, 2010, the State again sought a continuance of the trial date, this time because its medical expert was unavailable for trial and it needed to find a different expert. The defendant objected, stating that once again she had purchased a plane ticket for the witness from Colorado, that she had spent several hundred dollars on subpoenas, and that several physicians had treated the officer and the State had had ample time to arrange for testimony from one of them. The court denied the motion for a continuance, and the State then dismissed the charges by nolle prosequi. The court informed the defendant that she could be recharged and ordered the release of her bond deposit.
¶ 7 On December 8, 2010, the State indicted the defendant on the felony charge (count I in the earlier case). The defendant was arraigned on January 6, 2011, and she filed a speedy-trial demand. The case was continued to February 23, 2011, with the time charged to the State. Trial was set for March 31, 2011. A different judge presided over the new case.
¶ 8 On March 15, 2011, the defendant filed a motion to dismiss on due process grounds and statutory and constitutional speedy-trial grounds. A hearing was held, and the defendant testified that, in the spring of 2010, she was prepared for trial. She had witnesses ready, including one from Colorado whose attendance was difficult to arrange. The witness had limited financial means and had difficulties arranging time to appear because she could not afford to miss work. The defendant's conversations with the witness became more tense each time she would talk to the witness about taking time off to appear for trial, and the defendant felt bad about asking her to be available to testify. The defendant, who also had limited financial means, paid for the witness's travel arrangements using her credit card. She also took out loans to pay her counsel.
¶ 9 The defendant stated that, at the hearing where the State dismissed the charges, the prosecutor told her something to the effect of, "don't worry, we're going to bring you before the Grand Jury and indict you again." Because of this, the defendant felt like the charges were never actually dismissed. She was nervous and apprehensive and felt like her life was put on hold. She checked every day or every other day to see if she had been indicted yet. She also wanted to do volunteer work but did not, because she was uncertain about her ability to do so when a felony charge was pending.
¶ 10 On April 6, 2011, the trial court granted the motion to dismiss on statutory speedy-trial grounds and on the basis that the State had used the nolle prosequi to evade the defendant's speedy-trial rights. The court noted that the State had had plenty of time to arrange for witnesses, the nolle prosequi occurred shortly before the trial date, the defendant had spent ...