Lead Opinion
delivered the opinion of the court:
Defendant, Kevin Clay Garrett, was arrested on March 9, 1987, for offenses arising from a shoot-out with police that same evening. He was subsequently charged by information on March 10, 1987, with twо counts of attempted murder and one count of unlawful use of a firearm by a felon, and bond was set at $400,000. On March 30, 1987, defense counsel entered his appearanсe of record, Garrett’s plea of not guilty and a demand for a speedy jury trial. On April 27, an amended information was filed adding one count of defacing identification marks on a firearm. On May 27, bond was reduced to $75,000 pursuant to Garrett’s motion, and he was subsequently released on May 29, after posting bond.
The case was set for trial on June 8, 1987, and, on that date, Garrett successfully sought a continuance until July 1987. On August 5, 1987, the State sought and received a continuance to September 8, 1987. On October 5, 1987, the State again moved to continue the case because the only assistant Attorney General who had investigated, had interviewed the witnesses, and had prepared the case was conducting a trial in another matter. The motion was granted and trial was set for November 16,1987.
On October 13, 1987, Garrett moved to dismiss on grounds that he had not been brought to trial within 160 days of his demand for a speedy trial, as required by section 103 — 5(b) of the Illinois Code of Criminal Procedure of 1963 (111. Rev. Stat. 1987, ch. 38, par. 103— 5(b)). This motion was argued on November 9, 1987, and the court entered an order on November 18, 1987, finding that defendant’s in-custody demand for a speedy trial was effective to trigger the running of the 160-day time period in which to bring defendant to trial, and that after subtracting the delay attributable to Garrett, more than 160 days had elapsed from Garrett’s speedy trial demand. The trial court dismissed the case and this appeal followed.
At issue is whether, under the facts of this case, a speedy trial demand made while in custody triggered the 160-day time period. Section 103 — 5 of the Illinois Code of Criminal Procedure оf 1963 provides:
“(a) Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant, ***.
(b) Every person on bail or recognizance shall be tried by the court having jurisdiction within 160 days from the date defendant demands trial unless the delay is оccasioned by the defendant ***.” Ill. Rev. Stat. 1987, ch. 38, pars. 103 — 5(a), (b).
The cases involving the issue presented here are limited in number; therefore, we will briefly discuss each of them. In Peоple v. Byrn (1971),
In People v. Arch (1975),
In People v. Adams (1982),
In People v. Gathings (1984),
In the present case, defendant rеlies on our recent decision in People v. Frame (1988),
“[a] defendant on bail must be tried within 160 days from the date on which he demands trial. (Ill. Rev. Stat. 1985, ch. 38, par. 103 — 5(b).) We dо not interpret this section to mean that defendant must be on bail when he makes his demand.” Frame,165 Ill. App. 3d at 590 ,519 N.E.2d at 486 .
In addition to the foregoing cases, we note that it is well established that seсtion 103 — 5 should be liberally construed so as to give effect to the constitutional right to a speedy trial; however, each case must be decided on its own facts. (Peоple v. Brown (1982),
The defendant’s purported demand for speedy trial made on March 30, 1987, approximately two months prior to his release on bond, was entitled “Entry of Appearаnce, Plea of Not Guilty and Demand For Speedy Jury Trial.” This document was clearly a form designed to accommodate any criminal defendant with the only uncompletеd portion of the form being the defendant’s name in the caption of the case. The document stated, in its entirety, as follows:
“Now comes Brandt, Slate & Hildebrand, and enter their appearаnce as attorneys of record on behalf of the Defendant, enter a plea of Not Guilty on behalf of said Defendant, and demand a speedy jury trial.”
We find that the language of defendant’s demand was insufficient to place the State on notice that he desired a speedy trial once he was released on bail. Our determination is based on the fact that the language of defendant’s document cannot be considered as a continuing demand, unlike Frame; that there was almost two months lapse in time from the date of the demand and defendant’s release on bail, unlike Arch; and that defendant’s purported speedy trial demand was not made with any motion for bаil bond, unlike Frame and Gathings, and was coupled with an entry of appearance and the entry of a plea of not guilty, thereby unsupportive of the inference that the demand was only made towards the view that defendant was anticipating an imminent release on bail and that he desired a speedy trial once he was released on bail.
Regarding our comments made in Frame upon which defendant relies, we note that those comments were made within the context of our discussion of the differences between the Byrn and Adams line of authority and the Arch and Gathings line of authority, and were not dispositive of the issue in Frame. Like Arch, the demand in Frame was a continuing onе and is therefore distinguishable from Byrn. Defendant’s demand was not a continuing demand and cannot be distinguished from Byrn.
For the foregoing reasons, the judgment of the circuit court of Madison County is reversed and remanded.
Reversed and remanded.
WELCH, P.J., concurs.
Dissenting Opinion
dissenting:
Section 103 — 5(b) of the Code of Criminal Procedure of 1963 (111. Rev. Stat. 1987, ch. 38, par. 103 — 5(b)) provides in pertinent part that every person on bail must be tried within 160 days from the date defendant demands trial. For the reasons set forth in People v. Frame (1988),