*1 is 4 permissible range sentence where the of sentences to is years understandable. sentence, Yet, merely instead of reduce the opting majority opts accepted to overthrow standard of an de novo erroneously improper review and asserts stan- accepted This and approach, dard. which overthrows review, creates a new and long-standing standard a desired simply unfortunate standard reach result. decisionmaking This is a clear of result-oriented example improper long rightfully which is and has been con- thus the law majority opinion demned. The distorts clearly implies personal predilections that the indi- court, precedent, members vidual of this reason decisionmaking. this court’s guide sentence, at correct and lengthy only Shocked intellectually majority for the would approach honest sentence, 10-year approach been to reduce the an legally province and within the acceptable 615(b)(4). Supreme Rule See court under Court given, O’Neal, 125 Ill. 2d For the reasons I respectfully dissent.
(No. 85265. ILLINOIS, Appel- THE PEOPLE OF THE STATE OF LADD, lant, Appellee. v. LEROY February Rehearing denied Opinion filed 1999.— 29, 1999. March *3 RATHJE, J., part. took no
HARRISON, J., concurring. specially General, Springfield, of Attorney E. Ryan, James (Barbara of Belleville Haida, Attorney, B. State’s Robert General, Wil- Bertocchi, Solicitors and Joel D. A. Preiner Assistant Osterberger, A. and Domenica liam L. Browers Goetten, J. General, and Norbert Chicago, Attorneys Arnold, the Office of R. Gerry E. Norris Stephen Prosecutor, of Mt. Ver- Attorneys Appellate the State’s counsel), People. for the non, of Kirwan, Defender, Daniel M. Deputy and Michelle A. Zalisko, Defender, Assistant of the Office of the State Ap- Defender, pellate Vernon, of Mt. for appellee.
JUSTICE MILLER opinion delivered the of the court: defendant, Ladd, Leroy was convicted of armed aggravated violence and battery jury after a trial in the circuit court of St. Clair The trial County. judge sentenced to concurrent 12 years’ sentences of imprisonment on the armed violence conviction and 4 years’ imprisonment aggravated battery convic tion. The appellate court reversed the defendant’s convic tions, concluding that the defendant had been denied his statutory right speedy to a trial. 294 Ill. 3d 928. We (166 allowed the State’s petition for leave appeal Ill. 315(a)), 2d R. and we affirm now the judgment of the ap pellate court.
The following chronology is relevant to this appeal. The defendant was taken into custody 9, 1995, on April and he continuously remained in custody through time of trial. Defense counsel moved to dismiss the charges against the defendant on June 1995. The de- fendant filed a pro se motion seeking the same relief the day. next Both alleged motions that the defendant inwas custody for more than 30 days before a grand jury him, indicted in violation of section 109—3.1 of the Code (725 of Criminal Procedure of 1963 ILCS 5/109 —3.1 (West 1996)). At a status appearance on June a hear- ing on the motions was scheduled July 12, 1995. Nothing occurred on date, however, and the motions were not disposed 16, 1995, until October when the court denied them.
While the dismissal pending, motions were the defen- dant August 14, 1995, on a pro se motion seeking his discharge statute, section *4 5(a) (725 the Code of Criminal Procedure of 1963 103— 5(a) (West 1996)). ILCS Defense counsel filed a 5/103 — later, August on 15. day similar motion by defendant had then been alleged that the The motions of the days, than 120 in violation custody for more judge arguments The heard statute. speedy-trial judge the allowed the defense August on motions authority sup- additional present until 25 to judge The denied thé defendant’s port position. of the 1995. a written September motions on speedy-trial the motions to dismiss order, that judge explained tolled the clock speedy-trial the defense June filed until suspended would remain period and that noted, As eventually disposed of. motions were charges to dismiss on denied the motions judge the next began The defendant’s trial October 1995. guilty A jury on 17. found day, October guilty but not aggravated battery armed violence and concurrent The defendant received murder. attempted for the years’ years’ imprisonment sentences of two convictions. appellate and the court appealed,
The defendant had rights speedy-trial that the defendant’s concluded The court appellate Ill. 3d 928. been violated. 294 that judge’s trial conclusion disagreed with the the defendant’s tolled while clock remained speedy-trial The court appellate were pending. dismissal motions af running resumed believed date, the motions though even July hearing ter court appellate at that time. remained unresolved motions for dis determined also statute, though they were charge into meritori ripened they were premature when had them under advise judge trial ones while the ous defen held that court therefore appellate ment. The grounds. on was entitled dant (166 appeal for leave to petition allowed the State’s judgment affirm the 315(a)), and we now 2d R. Ill. court. appellate
607 regarding appeal questions The involves two present custody and the calculation of pretrial First, trial. we must determine preceding time for the amount of the attributable to the defendant If conclude charges. motions to dismiss the defense with the entire chargeable pe- that the defendant is not denial, their we must then preceding riod eventual determine the defendant’s motions for whether statute, premature under the which were they ripen when were could into meritorious mo- they by tions while were under advisement the trial judge. (725
A defendant possesses statutory both ILCS 1996)) (West (U.S. Const., and constitutional 5/103 —5 8) VI; 1970, I, § amend. Ill. Const. art. rights speedy to a trial. These are rights necessarily coextensive. People Garrett, 318, v. 136 2d (1990); Jones, Ill. 323 v. People (1984). 268, 104 Ill. 2d The 286 statute receives a liberal construction, designed to effectuate its purpose, though each case must be decided on People its own facts. v. Beyah, 423, (1977); 67 Ill. 2d People Fosdick, 427 v. 36 Ill. (1967). 2d 528-29 5(a)
Section provides: 103— “Every person custody in alleged this State for an of- by jurisdiction fense having shall be tried the court within days custody 120 from the date he taken was into unless by is occasioned ***.” 725 ILCS 5(a) (West 1996). 5/103 — for a appropriate remedy speedy- violation 5(a)
trial provision of section dismissal of the is 103— 5(d) charges. provides: Section 103— “Every person not tried accordance with subsections (b) (c) (a), discharged and of this Section shall from custody obligations or released from the of his bail or 5(d) (West 1996). recognizance.” 725 ILCS 5/103 — The speedy-trial statute does not how time is specify Statutes, to be calculated. Section 1.11 of the Statute on however, “The time act provides, any within which
provided
computed
by
law is to be done shall be
excluding
day
including
the first
the last ***.” 5
(West 1996).
1.11,
ILCS
Applying
ap
section
70/1.11
pellate
day
court has excluded the first
included the
day
any
purposes
calculating
last
relevant
v.
People
time
act. See
periods
Grant,
v. Sol
(1982);
App.
104 Ill.
3d
heim,
People Walton,
v.
(1977);
App.
54 Ill.
3d
2d
consistently
We have
(see,
e.g., People
employed the same method
the past
Kliner,
(1998)),
609 criterion in each case determining question, “In or contributed acts in fact caused whether to the that involve the delay. In the varied fact situations carefully facts to rule, examined the 120-day we have justice’ by either technical evasion of prevent ‘mockery a State, by byor a of a right speedy trial delay by [Citation.]” him. by a in fact caused defendant case, shows how the defen present nothing In the delayed any way past proceedings dant’s motions Moreover, delay date. will not be attrib July hearing People from a silent record. v. utable to the defendant Reimolds, Turner, (1989); 2d reasons, we decline 92 Ill. 2d For these to the original July setting to attribute after the defendant. note that the June dismissal motions filed by pro simple defense counsel se were and did not extensive uncomplicated require prepa ultimately ration the State. The by twin motions were by brief disposed following very argument 16, 1995, prosecutor hearing at a on October on the eve time, prosecutor explained of trial. At that and, had a timely preliminary hearing received moreover, that charges ap dismissal was not remedy even if a had propriate violation of the statute occurred.
The question also arises whether the occasioned the defendant’s dismissal properly motions *7 26, began on June when the first motion was or on July June when the scheduled. need hearing was We not determine responsibility who must take for this below, the trial three-day period, explain however. As we judge’s on the mo- ruling eventual defendant’s tions came more than three after the motions had days ones, into so the differ- ripened three-day meritorious ence can ultimate bearing disposition have no on our here. must next determine whether
motions for discharge under the speedy-trial statute, which premature were they made, when were could ripen into meritorious motions while the trial judge had them under advisement. The filed a motion for dis- charge under speedy-trial- August statute on contending that the speedy-trial had period already run. time, By that the defendant had been in custody for more than days, and the defendant asserted that earlier motions charges dismiss the did not result any delay chargeable to him. The defendant therefore contended that he was entitled to discharged speedy-trial statute. As we explained, however, the earlier produce motions did at least some at- tributable to the defense.' The defendant’s motions for discharge were therefore premature, having been filed days less than 120 following the time the defendant was placed custody, deducting after the period begins either June 26 or June July 29 and ends 12. August
At the 15 hearing on the defendant’s motions discharge, the judge granted the defendant additional time, until in support submit cases of his position. judge issued a ruling motions on September when he denied them. a brief written order, the judge cited the defendant’s pending motions for dismissal of the charges, June, filed in and the judge concluded that clock did not run while pending. earlier motions were noted,
As we have disagree with the trial judge’s speedy-trial conclusion did not resume clock running July after the date. hearing By the time the motion, trial judge ruled on the the defendant had been in custody longer days, than 120 determine we must what if after the portions, any, may motion was filed be included or excluded from the clock. argues may The State that a never premature *8 always must one that we ripen into a meritorious discharge time in the motion exclude the which result, pending. Opposing remains a in motion for that the which contends never be may speedy-trial pending act support In of the contention to defense. chargeable resolution in the consideration delay that no involved or. defense, may motion be attributed to speedy-trial a in People cites court’s decisions this (1953), Tamborski, v. Moriar Tamborski, In court Ill. 2d this ity, 33 seeking discharge time in a motion stated that the which not be attrib pending may for a violation is Moriarity, defense. In court dictum uted to the to urges State us Tamborski’s declaration. repeated disregard statements, earlier while overrule or those they defendant contends that should be reaffirmed. time agree do not with the defendant may in the resolution of a motion involved attributed defense. in Tambor- never be to the The court prior ski the effect in that case a defendant’s discussed discharge, it had motion for and the court concluded that de- actually any delay resulted in to the attributable fendant. The court explained: long prisoner has been that where obtains a
“It settled a action, or any way, continuance his causes a own trial, delay discharge. in his entitled We are he is not to agree, however, unable to that the motion for on July 25, delay as the trial. De was such an act would sought thereby fendant did not trial —he seek his discharge. did not im Nor does the fact that trial court mediately hear motion and later it under advise his took delayed by any act on ment tend to show that the trial was part The fact that first and third defendant. both the they pre motions were heard and decided on the date were a sented shows that such a motion does not involve fact, of, disposed trial. after the third was Tamborski, 415 proceeded day.” on the same court trial Ill. at 472-73.
We do not preceding passage from Tam interpret borski establishing rigid as a rule that preclude would court from attributing delay to the defense for a dis charge motion under pres statute. The *9 ent case illustrates why well some periods delay of resolving motions for discharge under statute may chargeable be to the defense. At August the 15 hearing speedy-trial motions, defense counsel requested additional time to respond to the cases cited by the State. Under the theory, however, defendant’s even period of delay could not be attributed to the defense. disagree. We To accept theory would mean that a defendant could purposely the delay proceedings so that the motion would become ripe while the delay was occurring. As the court below explained, “Defendant cannot pursue inaction on his mo tion, gain the agreement court’s to action, refrain from and subsequently raise Tamborski to assign resulting the delay to the State.” 294 Ill. App. Moreover, 3d at 938. that, note under the law in effect when Tamborski and Moriarity decided, were the consequence of a at tributable to the defense was to a begin speedy-trial new period when the delay ended, and simply to resume the of the v. running previous period. See People Donal (1976). son, 64 Ill. 2d Attributing delay to a premature defendant’s motion for discharge would therefore produced a particularly harsh result.
Although we have determined that at a portion least of the time required to dispose of a motion for discharge may be attributed to the defense, we are not prepared to adopt the State’s view and conclude that all the time dispose used to of motion charged must be to the defendant. The appellate court below agreed the of from August August requested counsel, defense should chargeable to the defen- dant. court appellate any declined to attribute pe- defendant, appel however. Like the the after that to riod of case, appellate the panels in this other panel late court the prosecution concluded that neither court have also all at bear the time automatically must nor the defense of a defendant’s disposition to the resolution tributed the statute. seeking discharge Andrade, 3d 298-300 App. v. Ill. See (in (1996) time responsible for considering party which motion, court necessary disposing motion, complex look to timeliness of the “must decide motion, necessary whether the facts ity of available, readily length motion are Medina, 3d continuance”); People 877-78 agree court this case that appellate with responsible is not for the entire period re 15-25 continuance he following
time The trial court did not defendant’s quested. dispose *10 15, September motions until when the written time, defen denying By order them was filed. that custody deducting dant had been in 132 after two days, chargeable the defense: June 26 periods delay to from (the 12, July August to and from date the defendant motion) August to The pro filed his se 25. stated, August 25, 1995, “After de appellate court below sought fendant immediate deci awaited stay jail sion. His Clair does County further the St. to act of nothing delay only decision. The conceivable After delay question was the tender decision. 25, 1995, nothing actually delay defendant did agree, trial.” 294 Ill. 3d at 938. and we believe the defendant was entitled to be released at time. matter,
As a final note that stat- ute, recently section has been amended. 103— 5(a), legislature added a sentence to section which 103— concludes, now “Delay shall be considered to agreed the defendant unless he or she objects to by making a written demand for trial or an oral demand for trial on the record.” Pub. Act eff. January 90— 1999. The parties do not suggest that the new statute ap- plies case, to the present and we express no opinion on the operation or effect of the new provision.
For the stated, reasons the judgment of the appellate court is affirmed.
Judgment affirmed. JUSTICE RATHJE took no part the consideration or decision of this case.
JUSTICE HARRISON, specially concurring:
I agree with the result
reached by the majority: de
fendant
is entitled to discharge on speedy-trial grounds. I
write separately because I do
agree
with my col
leagues’
of People
Tamborski,
v.
interpretation
v.
(1953),
People Moriarity,
Contrary to the
I
majority,
do not believe that
rule should be subject
to exceptions. Speedy-trial
rights
are not self-executing.
In order to avail himself of the
protection of our state’s speedy-trial statute, a defendant
must make application for discharge. Shields,
58 Ill. 2d
Because the
of a
filing
dis
charge motion is necessary to assert speedy-trial
rights,
it is anomalous
to hold that
the prosecution
of such a
creates
for which the defendant
respon
*11
sible.
bring
Defendants
discharge motions because they
want
to terminate
the proceedings,
protract
them.
Tamborski,
The majority worries that a defendant might attempt discharge filing system by motion a to subvert deliberately delay resolution prematurely, then while run out clock will that the matter so pending. concern, Such is still real. Motions than more theoretical however, seems hearings. evidentiary require elaborate do not promptly They the court. be resolved can and should no need to case, trial court should In a normal anything grant the briefest of more than being so, difficult to see where That it is continuances. always course, opportunities there is lie. Of for abuse dilatory may possibility the trial court presented. resolving however, That, it is matter once court, not of the defendant. fault of the is the certainly any no event, evidence there is manipulate attempting defendant was majority in- cited no other case, has in this and the law alleged to occurred or is such abuse has stances which attempt fact, such If a defendant does have occurred. day, take the matter should one that is when we abuse against jurisprudential up. counsel considerations Sound problem attempting we are certain to resolve a before really problem exists. that the