People v. BaumanPeople v. Bauman
(Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the convenience of the reader.)
The trial court erred in finding that defendant waived his demand for a speedy trial by failing to appear in person at a status hearing set for a prosecution subpoena, since the date was set by the State, and was not a date “set by the court” as required under section 103-5(b) of the Code of Criminal Procedure in order to find a waiver of a valid speedy-trial demand, and, furthermore, defendant’s failure to appear did not cause any delay in the proceedings.
¶ 1 After a stipulated bench trial, defendant, Eric M. Bauman, was found guilty of driving under the influence of alcohol (DUI).
I. BACKGROUND
¶ 2
¶ 3 On March 27, 2010, defendant was charged with possession of drug paraphernalia (
¶ 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
¶ 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
¶ 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 the motion, but again referenced Zakarauskas as dispositive of that issue.
¶ 12 On November 29, 2010, defendant filed a motion to dismiss based on a violation of his right to a speedy trial. The State responded, and the court heard arguments from both parties. On January 14, 2011, the court denied defendant’s motion to dismiss, again relying on Zakarauskas.
II. ANALYSIS
¶ 14
¶ 15 On appeal, defendant argues that the trial court erred in denying his motion to dismiss, when he had a valid speedy-trial demand on file and he was not tried until after the 160-day speedy-trial time frame had run. Specifically, he argues: (1) he did not waive his valid speedy-trial demand where he caused no delay; and (2) even if he did not have to cause a delay to waive his right to a speedy trial, he did not fail to appear at a date “set by the court,” as required in the speedy-trial statute. See
¶ 16 In Illinois, a defendant has both a constitutional and a statutory right to a speedy trial.
“(b) Every person on bail or recognizance shall be tried *** within 160 days from the date [the] defendant demands trial unless delay is occasioned by the defendant ***. The defendant’s failure to appear for any court date set by the court operates to waive the defendant’s demand for trial made under this subsection.” (Emphasis added.)
725 ILCS 5/103-5(b) (West 2010).
¶ 17 Section 103-5(f) of the Code relates to delays caused by a defendant, and provides, in pertinent part:
“(f) Delay occasioned by the defendant shall temporarily suspend for the time of the delay the period within which a person shall be tried as prescribed by subsections (a), (b) or (e) of this Section and on the day of expiration of the delay the said period shall continue at the point at which it was suspended.”
725 ILCS 5/103-5(f) (West 2010).
¶ 18 Prior to the 2000 amendment of section 103-5(b), a delay occasioned by a defendant’s failure to appear in court only suspended the 160-day speedy-trial term. See People v. Dotson, 173 Ill. App. 3d 541, 545 (1988) (the defendant’s failure to appear at a scheduled court hearing temporarily tolled the speedy-trial term).
¶ 19 Generally, the trial court’s ruling on a speedy-trial challenge shall be affirmed absent an abuse of discretion. People v. Buford, 374 Ill. App. 3d 369, 372 (2007). However, an issue on appeal that involves a question of statutory interpretation is subject to de novo review. Zakarauskas, 398 Ill. App. 3d at 453. ” ‘The fundamental rule of statutory construction is to ascertain and give effect to the legislature’s intent.’ ” Id. (quoting Cordell, 223 Ill. 2d at 389). The language of the statute is the best indication of legislative intent, and that language will
¶ 20 We initially note that this issue requires us to interpret section 103-5(b) of the Code in order to determine if defendant waived his speedy-trial demand by not appearing in court on July 9, 2010. See
A. A Date “Set by the Court” in Section 103-5(b)
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¶ 22 Since the facts of this case involve defendant’s failure to appear in court, we will first address defendant’s argument that he did not waive his speedy-trial demand because he did not fail to appear at a date “set by the court,” as required by section 103-5(b) of the Code.
¶ 23 The State agrees that defendant made a valid speedy-trial demand. However, it maintains that defendant’s failure to appear on July 9, 2010, a status date on one of its subpoenas, waived his speedy-trial demand under section 103-5(b) of the Code.
¶ 24 In Zakarauskas, the trial court ultimately granted the defendant’s motion to dismiss based upon a speedy-trial violation after the 160-day term of his first speedy-trial demand had run, even though during that period the defendant had failed to appear in court on a day that was set for trial. Id. at 452. In reversing the trial court, the Zakarauskas court made it clear that the plain language of section 103-5(b) as amended in 2000 “manifested the legislature’s intent to distinguish a defendant’s failure to appear in court from other types of delay, a motion for a continuance, for example, either by the defendant or by agreement.” Id. at 454. We agree with the State that the Zakarauskas court properly interpreted the amended section 103-5(b). See
¶ 25 In response to this argument, the State contends that, since a party does not have a right
¶ 26 We are not persuaded by the State’s argument. First, the fact that the court has final authority on the setting of dates when parties may appear before it does not change the fact that here the State, not the court, set the status date on the subpoena. This is made clear by McHenry County local rules, which specifically provide that “subpoenas shall be returnable before the judge assigned to the case at a time that the court is normally in session.” 22d Judicial Cir. Ct. R. 10.17(a) (June 1, 2007). The local rules do not refer to the trial court setting a court date for return on a subpoena. More important, to find that all court dates, no matter whether set by the trial court (i.e., a trial date) or by a party (i.e., a status date for return on a subpoena), should be considered dates “set by the court” for purposes of section 103-5(b) of the Code would make the phrase “any court date set by the court” in section 103-5(b) superfluous. See
¶ 27 The fact that defendant has not cited any cases that discuss the difference between a date set by the court versus a date set by a party does not mean that such a distinction does not exist. Instead, it highlights the fact that this particular issue, at least with respect to the language in section 103-5(b) of the Code, has not yet been addressed by Illinois courts. Here, in determining the plain meaning of this statute in its entirety, we hold that a date set by a party as a status date for return on a subpoena is not a date “set by the court,” as section 103-5(b) of the Code requires in order to find a waiver of a valid speedy-trial demand.
¶ 28 Along with Zakarauskas, the State cites to People v. Higgenbotham, 2012 IL App (1st) 110434, and People v. Minor, 2011 IL App (1st) 101097, as support for its claim that the court did not err in denying defendant’s motion to dismiss on speedy-trial grounds because he waived his demand by his failure to appear on a status date on one of its subpoenas. We have reviewed these cases and find that, like Zakarauskas, they do not aid the State, because they each involve a defendant’s failure to appear in court on a date “set by the court.” See Higgenbotham, 2012 IL App (1st) 110434, ¶ 34 (defendant waived valid speedy-trial demand when she failed to show up for a court date that had been set by the court after she received a court-sanctioned continuance due to hospitalization); Minor, 2011 IL App (1st) 101097, ¶ 15 (defendant waived her speedy-trial demand when she failed to appear at a date set by the court even though she appeared and explained her absence the next day).
¶ 29 At oral argument, the State suggested that because defendant appeared for status on the return of his own subpoena he should have known that he was required to appear for status on the return of the State’s subpoenas. It also argued that if it was required to appear for status on defendant’s subpoena then defendant was required to appear for status on the State’s subpoenas.
¶ 30 The State misapprehends the ramification of a party not appearing on a return date for
¶ 31 The use of subpoenas or ” ‘compulsory process for obtaining witnesses in his favor’ ” in all criminal proceedings is a right guaranteed by the sixth amendment to the United States Constitution and is applicable to State criminal proceedings. People ex rel. Fisher v. Carey, 77 Ill. 2d 259, 265 (1979) (quoting Washington v. Texas, 388 U.S. 14, 23 (1967)). This guarantee encompasses the production of documentary evidence by subpoenas duces tecum. Id.
¶ 32 On a return date for a subpoena, the trial court may ask the party subpoenaed, or any other person with a legitimate interest in the proceedings, whether an objection is raised. The court can then address the objection before releasing the subpoenaed documents. See People v. Hathaway, 263 Ill. App. 3d 426, 430 (1994).
¶ 33 The State confuses both parties’ conduct in taking advantage of their right “to have compulsory process” with defendant’s obligations to appear “as ordered by the court,” as stated on defendant’s bail bond sheet as one of the conditions of his bail bond. See
B. Delay Occasioned by Defendant
¶ 34
¶ 35 Next, defendant argues that he did not waive his speedy-trial demand because he caused no delay in the proceedings. Specifically, he contends that the only delay during his 160-day speedy-trial window was attributed to the State when it requested and was granted a continuance on August 9, 2010.
¶ 36 We initially note that defendant’s argument is based upon the incorrect assumption that if he caused delay in the proceedings he would have waived his speedy-trial demand. Instead, sections 103-5(b) and (f) of the Code make it clear that: (1) a defendant’s failure to appear for any court date set by the court waives a valid speedy-trial demand; and (2) any other delay occasioned by the defendant temporarily suspends his demand. See
¶ 37 As we have noted, the date for which defendant did not personally appear was only a status date for return on one of the State’s subpoenas. Therefore, defendant’s absence on that day did not cause any delay in the proceedings. Accordingly, his absence could not have temporarily tolled the speedy-trial time period that began when he filed his demand on April 26, 2010. See
¶ 38 Finally, at oral argument the State moved to cite People v. Wigman, 2012 IL App (2d) 100736, as additional authority. Defendant did not object, and we granted that motion. After oral argument the State also followed up with a written motion to that effect. We take that motion with this case and also grant it. However, the Wigman decision is of no help to the State here. In its written motion the State notes that in Wigman this court addressed the same statutory section at issue in the instant case and cited the same cases relied upon here in the parties’ briefs. While it is true that Wigman also dealt with section 103-5(b) of the Code, the similarities between Wigman and the instant case end at that point. Whether the defendant failed to appear for a date “set by the court” was not an issue in Wigman. Here, however, such a determination is dispositive of the issue of whether defendant waived his speedy-trial demand. Therefore, we find that Wigman does not aid our analysis. See id.
III. CONCLUSION
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¶ 40 For these reasons, we hold that the trial court erred in denying defendant’s motion to dismiss based upon a violation of defendant’s right to a speedy trial. Accordingly, the trial court’s order finding defendant guilty of DUI, along with his sentence of supervision and assessment of fines and fees, is reversed.
¶ 41 The judgment of the circuit court of McHenry County is reversed.
¶ 42 Reversed.