Appeal from the Circuit Court of McHenry County. No. 10-DT-304 Honorable Gordon E. Graham, Judge, Presiding.
The opinion of the court was delivered by: Justice Birkett
JUSTICE BIRKETT delivered the judgment of the court, with opinion. Justices Zenoff and Hudson concurred in the judgment and opinion.
¶ 1 After a stipulated bench trial, defendant, Eric M. Bauman, was found guilty of driving under the influence of alcohol (DUI). 625 ILCS 5/11-501(a)(2) (West 2010). He was sentenced to 10 months' supervision and assessed fines and fees. On appeal, defendant argues that the trial court erred in denying his motion to dismiss this action for a violation of his right to a speedy trial. See 725 ILCS 5/103-5(b) (West 2010). For the following reasons, we find that the trial court erred in denying defendant's motion to dismiss. Therefore, we reverse the judgment of the trial court.
¶ 3 On March 27, 2010, defendant was charged with possession of drug paraphernalia (720 ILCS 600/3.5 (West 2010)), possession of cannabis (720 ILCS 550/4 (West 2010)), failure to reduce speed to avoid an accident (625 ILCS 5/11-601 (West 2010)), improper lane usage (625 ILCS 5/11-709 (West 2010)), and DUI (625 ILCS 5/11-501(a)(2) (West 2010)). He secured bond and was released that day. One of the conditions of his bond was that he "appear to answer this charge in the Court having jurisdiction of the day certain set for hearing of this cause and thereafter as Ordered by the Court until discharged."
¶ 4 On April 26, 2010, defendant filed a written document entitled "SPEEDY TRIAL DEMAND" and served a copy on the McHenry County State's Attorney's office. The written demand states, "[p]ursuant to 725 ILCS 5/103, the Defendant hereby demands a speedy trial as of the date of this order." On April 27, 2010, defendant filed a notice of motion and a subpoena duces tecum. The subpoena was directed to the McHenry County sheriff's department. In the notice of motion the return date on the subpoena was listed as May 11, 2010.
¶ 5 On May 6, 2010, defendant appeared in court and notified the court that he had filed a speedy-trial demand. The case was continued to May 10, 2010, in another courtroom. On May 10, 2010, defendant again notified the court of his speedy-trial demand and answered ready for trial. The court then set a trial date of August 9, 2010.
¶ 6 On May 19, 2010, the State filed a notice of motion along with a subpoena duces tecum. The subpoena was directed to Marengo Rescue, a fire protection and emergency services agency in Marengo, Illinois. The notice of motion was also sent to defendant's attorney and stated that on June 18, 2010, the State would request status on the subpoena.
¶ 7 On June 17, 2010, the State filed another notice of motion to set a status date of July 9, 2010, on a subpoena it had sent to the Westchester Forensic Science Laboratory. That notice was served by fax on defendant's attorney. On June 18, 2010, defendant appeared in court with his attorney for return on the subpoena directed to Marengo Rescue.
¶ 8 On June 29, 2010, the State filed another notice of motion directed at Marengo Rescue. In that notice, the State sought a July 21, 2010, date for status on the subpoena. Defendant's attorney was also served a copy of the notice.
¶ 9 On July 9, 2010, the status date on the State's subpoena to the Westchester Forensic Science Laboratory, defense counsel appeared in court but defendant did not personally appear. Defense counsel notified the court that a jury trial date had been set for August 9, 2010, and that there was a speedy-trial demand on file. Counsel answered ready for trial and noted that the parties were in court for status on one of the State's subpoenas. In response, the State informed the court that defendant was not present and asked the court to find that defendant had waived the speedy-trial demand. The State also requested a warrant for defendant's arrest. Defense counsel argued that the parties were in court only because of a date set by the State, not the court. The court, relying on People v. Zakarauskas, 398 Ill. App. 3d 451 (2010), responded that Illinois law indicates that it does not make a difference whether the State or the court sets the date, because either way the defendant must be present. Defense counsel responded that, applying such logic, the State could set five court dates a week that would require defendant's personal appearance or his speedy-trial demand would be waived. The court ruled that it was bound by Illinois law and held that defendant had waived his speedy-trial demand.
¶ 10 On August 6, 2010, the State filed a motion to continue the trial due to the unavailability of one of its witnesses. On August 9, 2010, the parties appeared in court on that motion. At that time, defense counsel again argued that defendant had filed a speedy-trial demand and was answering ready for trial. The court referred to its earlier ruling that defendant had waived his speedy-trial demand and that it was therefore no longer in effect. Over defense objection, the State's motion to continue was granted and the case was continued for trial to October 25, 2010.
¶ 11 The record does not reflect what, if anything, occurred on October 25, 2010. On November 24, 2010, the parties appeared in court. Defense counsel asked leave of court to file a motion to dismiss based upon a speedy-trial violation. The trial court granted counsel leave to file ...