*1 People Illinois, v. Isiah Plaintiff-Appellee, Washington, Defendant-Appellant. 71-340;
(No. Second September District Opinion by Mr. PRESIDING SEIDENFELD.
Paul Bradley, Defender Elgin, appellant. Reinhard, Rockford, Philip G. for the Attorney, People. Harry Illinois, State of Plaintiff-Appellant,
Gulick, Defendant-Appellee. Jr., 71-176; (No. 19, 1972.
Third District *2 STOUDER, J., specially concurring. P. Macomb, of for People.
Bruce Attorney, Assistant Biagini, Geis, Ottawa, of for Defender appellee. James Mr. court: opinion DIXON delivered the theft. Gulick, The was indicted for Harry burglary Jr., 1971, 2, He was later indicted for of bail bond. On violation orders, be discharged court ordered that the defendant by separate as days 120 because he was not trial within custody brought Rev. provided section 103—5 of the of Criminal (Ill. Code Procedure. Stat., 38, ch. The has from those orders par. 5.) appealed 103 — we consolidated the causes for the this appeal. purposes 16, 1970, bond posted the defendant was arrested. He hear- which was forfeited he failed to when appear preliminary 23, on theft October 1970. The indictment was returned ing burglary 1970, 10, in- November while defendant was a bail bond fugitive. 8, dictment returned found The defendant was later January 1971. Iowa, An Burlington, was returned to Illinois on March 1 attorney was on and the cases continued appointed April to April 29, 1971, for filing of defense motions. On April the defendant appeared his in court with and the took appointed attorney following place: “Defense Simshauser: Attorney # * # 21st for to April cause continued the record shows that ask the Court’s motions, I would I of that. filing was not aware Court then ask the leave to let defendant plead morning a discovery for further time to and file motions either prepare nature or directed which will against the indictment study over. Simshauser, know,
The Court: Mr. Well of course I wouldn’t why you weren’t of the— aware that,
Mr. I’ll judge. Simshauser: take the responsibility [*] [*] followed, arraignment and a guilty, whereon plea it, Now, as Simshauser, “The Court: Mr. I would understand ** * time,
you have made in which to file mo- tions directed to the indictment and other motions you might desire to make. Yes,
Defense Attorney: sir. The Court: How much time do want? you Defense Attorney: days, Fifteen Your Honor.
The Court: Any objections? No,
State’s Attorney: Sir. *3 The Court. Let the record that show the motion of defendant for time within file to motions on behalf of defendant matter, be and granted, the defendant be the given to opportunity said file motions within fifteen from days day the and hereof the cause will be continued setting; hearing on said motions if when, as, any, and if they are filed. So the will case be continued from day to day looking for a disposition of motions that may be filed.”
Immediately thereafter the same record was made as to the bail bond charge. defendant, bond,
The unable post to remained in jail until discharged. No motions filed were by defendant and nothing was done until July 6, 1971, when the People made a for a motion trial date which was 2, granted for August 23, 1971, 1971. defendant filed his motion July for discharge which motion was 2, allowed on August 1971. The a to trial for in right provided section 5(a) 103— 18,
Criminal Code trial 1971, would within 120 require days of March was when defendant into Illinois from brought Iowa was delay “unless by occasioned the defendant”. The contends that the continuance 29, granted on was such a April delay while defendant that a argues continuance to allow defendant time to prepare pretrial motions cause 430 a break in the and not constitute the case to trial does delay
no in bringing 120-day term. to his delay, right a his causes by defendant own action
Where does the Statute statutory the is suspended be tried within period a The rule elapsed. applies until new has apply 120-day period not the a a continuance within sought where defendant has and obtained been v. “It has 430.) 123 period. (People Taylor, Ill.App.2d consistently is a held that a continuance at the the granted 46 Ill.2d The Young, 82.) occasioned the defendant.” v. (People is determining criterion in whether was occasioned a whether defendant’s acts in or contributed to slowdown fact caused Johnson, judicial Ordinarily, the 45 Ill.2d de process. (People 38.) v. attributable to lays defendant’s counsel are defendant. People Young, supra. v. trial legal days a existed 15 impediment
It is obvious that during no to demand trial The was April position prosecution run date 120-day The new starts to from the to which period period. 493; v. (People Hamby, People was continued. Ill.2d v. the cause 2, 1971, trial which Niemoth, 409 matter was set for 111.) Ill. and the trial court should have 120-day period was well within the not motion allowed the for discharge. cases; his has cited three v. argument People in support
Defendant 769, 411, 266 N.E.2d held wherein the Court Ill.App.2d (1971), Jones and a motion must suppress necessarily to dismiss a motion running would the Statute. interrupt proceeding delayed defendant’s position. not support does case Markword, 108 the facts were defen- Ill.App.2d In on the 119th Fri- day custody, 118th day indicted on was dant guilty entered a not was set plea case arraigned, he was day, December 18. defendant’s Monday, Thereupon, following trial the continuance of the filed various attorney requested appointed an day defendant made oral motion to with- the same Later motions. for a continuance which withdrawal motion motion draw his previous set for trial on case was December other 18. The allowed withdrawn and were defendant were allowed filed motions 18, the 122nd day after he was taken *4 December Monday, day. filed his motion for and dis- discharge was custody, into court that trial court. The found the motion for con- the charged by withdrawn, made, and allowed all on the day was same tinuance the by defendant. The court found also could not be of the motions and allowance defendant was not in by filing that the day on the made allowed were all any way delaying they since first he could have made the motions. to indict caused failure
Quite obviously by the Markword was dilatory. until the 118th of The motions were day custody. of Hatchett, 40, is also Ill.App.2d Defendant’s case of on factual a unique little since it also based contrary persuasion returning sub- setting. There the State to avoid the statute attempted same offense. The indictments it conceded the sequent charged which stated, motions, not dis- court “An examination of defendants other does the run- close that nature as would they dilatory prevent were of such in Hatchett was ning determining the factor statutory period.” throughout delay. the State’s actions caused the are, Court there- judgments McDonough County Circuit fore reversed the causes remanded for further consistent proceedings with this opinion. reversed,
Judgments causes remanded.
ALLOY, concurs. J.,
Mr. PRESIDING STOUDER specially concurring: agree with the result reached colleagues it is my since I believe accord with the precedents. There is little doubt that the authorities in this State on subject have announced rule that if repeatedly seeks, to, consents or acquiesces in a continuance the period time contemplated rule commences to 120-day run date to which the cause is continued. According to the authorities such a con- tinuance amounts to delay occasioned the defendant as a matter law without regard to whether in fact there was unreasonable inter- any ference with the orderly efficient administration of justice. to many changes
It seems me occurred in trial procedures which a re-examination of the justify application interpretation statutory our implementation constitutional trial re- statute quirement. Neither the nor court decisions require that a de- custody fendant in be ready, willing and available to stand trial on each or other number of the 120 specified days described in the In statute. fact if a defendant is arrested and in custody before indictment indictment would before be unless impossible defendant waives such as Both indictment. and technical practical matter defendant’s refusal indictment waive could be considered delaying conduct. If the 120-day procedures current are rule to be harmonized it well might be the State required should be show and the find court that the conduct *5 than delay rather the defendant occasioned actual unreasonable delay did not con-
which is only If the conduct of the apparent. this case and stitute significant or actual trial court found delay, as the entitled to found, be believe so then trial court should properly to afford the determine that the State had failed its responsibility to meet contemplated by statute. in this case should be arguments From the briefs and oral it noted intervening the trial position the State was well court’s aware the defendant. procedures July did not constitute on bail re- State to coerce defendant’s release attempted recognizance be released on a nominal bond questing be noted which release was declined defendant. Furthermore it should that the case was at the jury impaneled set before special of the an State without any showing convening earlier such de- jury was in or interfered with special way prevented fendant’s conduct. neither haste nor purposeless has often been said precipitous
As fairness. these extremes Balancing consonant with fundamental are continuing refinement. accord with variables changing requires Pulley, David Plaintiff-Appellee, Illinois, Defendant-Appellant. 72-68;
(No. 19, 1972. Third District PER CURIAM. Ottawa, Stratton, appellant. of Defender
Bruce Bertani, Attorney, of the People. Louis R. Joliet,