Appeal from Circuit Court of Vermilion County No. 11CF456 Honorable Nancy S. Fahey, Judge Presiding.
The opinion of the court was delivered by: Justice Appleton
JUSTICE APPLETON delivered the judgment of the court, with opinion. Justices Steigmann and Knecht concurred in the judgment and opinion.
¶ 1 The State appeals from an order discharging defendant, Bryan C. Falletti, for violation of his statutory right to be tried within 120 days. See 725 ILCS 5/103-5(d) (West 2010). We decline to consider the arguments that the State makes in this appeal, because it does not appear that the State made these arguments in the trial court. Therefore, we affirm the trial court's judgment.
¶ 3 According to a notation at the bottom of the information, the police arrested defendant on July 28, 2011. The State charged him, in Vermilion County case No. 11-CF-456, with three counts: unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2010)), reckless discharge of a firearm (720 ILCS 5/24-1.5 (West 2010)), and unlawful possession of a weapon by a felon with a previous conviction of unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2010)).
¶ 4 In a hearing on August 25, 2011, the trial court scheduled defendant's trial for October 7, 2011.
¶ 5 On October 7, 2011, the trial court held a joint hearing in this case as well as in three other criminal cases pending against defendant: Vermilion County case Nos. 10-CF-268, 11-CF-10, and 11-CF-211. (Defendant was in custody in the present case but not in the other three cases.) Michael Merlie represented defendant in the present case, and Baku Patel represented him in the other three cases, but in the hearing of October 7, 2011, Kavita Uppal stood in for Patel.
¶ 6 The trial court noted that, in Vermilion County case Nos. 10-CF-268, 11-CF-10, and 11-CF-211, defendant had moved for a fitness evaluation and the court had granted the motion. The court asked Merlie:
"THE COURT: *** But there has been no such order entered in 11-CF-456, Mr. Merlie?
MR. MERLIE: Your Honor, my client has instructed me he's ready for trial and wishes to proceed."
¶ 7 The prosecutor, Sandra L. Lawlyes, argued that defendant could not raise an issue of fitness in Vermilion County case Nos. 10-CF-268, 11-CF-10, and 11-CF-211 and at the same time, in the present case, proceed immediately to trial while the issue of fitness was still unresolved. According to Lawlyes, defendant had to either withdraw the issue of fitness from the other three cases or, in the present case, accept a delay, attributable to him, until the results of the fitness evaluation were forthcoming.
¶ 8 Merlie responded: "Your Honor, I'm not waiving any right to-or I would object to the State's analysis. It's not my motion for fitness. As I indicated, we're ready for trial on his case. I don't think Mr. Falletti should stand for any-or he should be charged with any delays in my ...