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People v. Dismuke

Court of Appeals of Illinois, Second District

June 19, 2013

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant,
v.
ANTWON L. DISMUKE, Defendant-Appellee.

Appeal from the Circuit Court of Kane County No. 10-CF-2605 Honorable David R. Akemann, Judge, Presiding.

Justices Hutchinson and Jorgensen concurred in the judgment and opinion.

OPINION

ZENOFF JUSTICE

¶ 1 Defendant, Antwon L. Dismuke, was indicted for being an armed habitual criminal (720 ILCS 5/24-1.7(a) (West 2008)) and for unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2008)). The trial court granted defendant's motion to dismiss the charges. The State appeals pursuant to Illinois Supreme Court Rule 604(a)(1) (eff. July 1, 2006). We affirm.

¶ 2 BACKGROUND

¶ 3 On November 19, 2009, Aurora police and special agents of the Bureau of Alcohol, Tobacco, and Firearms executed a search warrant at defendant's residence and arrested defendant and 10 others present at the time. The search warrant was aimed at recovering a firearm, ammunition, and proof of defendant's residency there. Items recovered during the search included a loaded handgun (found under the living room couch), an empty .380-caliber magazine, several containers of cannabis (found in three plastic bags in the kitchen and in a mason jar in the living room), and proof of defendant's residency.

¶ 4 On November 20, 2009, defendant was charged with misdemeanor possession of cannabis. Defendant was booked and fingerprinted, and he posted bond. On December 1, 2009, the cannabis recovered was sent to the Illinois State Police forensic lab. Thereafter, on March 30, 2010, defendant filed a written demand for a speedy trial.

¶ 5 With respect to the handgun recovered in the search, on November 25, 2009, an Aurora police department evidence technician lifted two latent fingerprints from the handgun and returned them to evidence storage. On July 15, 2010, the technician notified an Aurora police investigator that he had recovered a latent fingerprint[1] from the handgun. On September 1, 2010, the police investigator retrieved defendant's fingerprints from the booking sergeant and sent them, with the latent prints recovered from the weapon, to the Illinois State Police forensic lab. A forensic scientist generated a report on September 16, 2010, indicating that a comparison of the suitable latent print recovered from the handgun revealed that it was made by defendant. The Aurora police investigator received the forensics report on September 22, 2010. On October 25, 2010, [2] defendant was indicted for being an armed habitual criminal (a Class X felony) and for unlawful possession of a weapon by a felon (a Class 2 felony). Defendant filed a speedy-trial demand.

¶ 6 For the next year and a half, defendant, alternately represented by the multiple defenders division[3] and private counsel, and appearing pro se, moved several times to dismiss the gun-related charges on compulsory-joinder and speedy-trial grounds. After the trial court denied defendant's first motion to dismiss, he filed three pro se motions to dismiss (one was entitled a supplemental motion). With respect to each motion, the court granted the State's motion to strike because the issues had already been litigated.

¶ 7 Ultimately, on July 6, 2012, defendant, represented by private counsel, filed the motion to dismiss at issue here. The trial court heard argument on the motion on July 18, 2012, and took the matter under advisement. Relying heavily on People v. Hunter, 2012 IL App (1st) 092681, the court granted defendant's motion to dismiss in a written memorandum opinion entered on August 10, 2012. The State timely appeals.

¶ 8 ANALYSIS

¶ 9 Section 103-5 of the Code of Criminal Procedure of 1963 (Code of Criminal Procedure) (725 ILCS 5/103-5 (West 2008)) contains the speedy-trial statute, which directs that a defendant who was in custody and is subsequently released on bail shall be tried within 160 days from the date he or she filed a written demand for trial. 725 ILCS 5/103-5(b) (West 2008); People v. Hunter, 2013 IL 114100, ¶ 10. A defendant not tried within the statutory period must be released from his or her trial obligations and have the charges dismissed. 725 ILCS 5/103-5(d), 114-1(a)(1) (West 2008); Hunter, 2013 IL 114100, ¶ 10. The compulsory-joinder statute is found in section 3-3 of the Criminal Code of 1961 (Criminal Code) (720 ILCS 5/3-3 (West 2008)), which "requires the State to prosecute all known offenses within the jurisdiction of a single court in a single criminal case 'if they are based on the same act.' " Hunter, 2013 IL 114100, ¶ 10 (quoting 720 ILCS 5/3-3(b) (West 2008)). Our supreme court has explained that the interplay between the speedy-trial and compulsory-joinder statutes requires that, if multiple charges are subject to compulsory joinder, "the speedy-trial period begins to run when the speedy-trial demand is filed, even if the State brings some of the charges at a later date." (Internal quotation marks omitted.) Hunter, 2013 IL 114100, ¶10.

¶ 10 Here, the State argues that compulsory joinder was not required, because the gun-related charges were not "based on the same act" as the cannabis charge—within the meaning of section 3-3(b) of the Criminal Code. The State raises no argument regarding the applicability of the speedy-trial statute if we conclude that compulsory joinder applies. It is undisputed that, if compulsory joinder applies, the speedy-trial period began to run when defendant filed a written demand for trial in the cannabis case. Also undisputed is the fact that, when the State brought the gun-related charges, the 160-day speedy-trial period had expired. Accordingly, the question we must decide is whether compulsory joinder applies. The issue presents a legal question and the facts are undisputed; therefore, our review is de novo. See Hunter, 2013 IL 114100, ¶ 12 (using de novo review in similar circumstances).

¶ 11 In the trial court, the parties argued whether the appellate court's decision in Hunter, 2012 IL App (1st) 092681, governed. At that time, a petition for leave to appeal was pending in our supreme court. Not long after briefing was completed in the instant case, our supreme court issued its decision in Hunter, 2013 IL 114100. We agree with the trial ...


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