People v. Anderson

• Decision Date: 26 January 1973
• Docket Number: No. 44958,44958
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Creola ANDERSON, Appellant.
• Court: Illinois Supreme Court

Page 364

292 N.E.2d 364

53 Ill.2d 437

The PEOPLE of the State of Illinois, Appellee, v. Creola ANDERSON, Appellant.

No. 44958.

Supreme Court of Illinois.

Jan. 26, 1973.

R. Eugene Pincham, Charles B. Evins, and G. Michael Cooper, III, Chicago, for appellant.

William J. Scott, Atty. Gen., Springfield, and Edward V. Hanrahan, State's Atty., Chicago (James B. Zagel, Asst. Atty. Gen., and Elmer C. Kissane and William D. Wolter, Asst. State's Attys., of counsel), for the People.

SCHAEFER, Justice.

After a trial before a judge of the circuit court of Cook County, the defendant, Creola Anderson, was found guilty on March 1, 1971, of the offense of theft of over $150. When she was initially charged with the offense, on February 26, 1968, section 103--5(b) of the Code of Criminal Procedure provided: 'Every person on bail or recognizance shall be tried by the court having jurisdiction within 120 days from the date defendant demands trial unless delay is occasioned by the defendant * * *.' By an amendment which became effective August 28, 1968, the statutory period of 120 days was increased to 160 days. (See Ill.Rev.Stat.1967, 1969, ch. 38, par. 103--5(b).) And because the latter period was applied by the trial judge in denying the defendant's motion for discharge under the statute, she contends that the Federal and State constitutional prohibitions against Ex post facto laws and her Federal and State constitutional rights to a speedy trial were violated.

On February 26, 1968, a complaint was filed which charged the defendant with the theft of $7,600 from her employer, Star Foods, Inc., on February 2, 1968. Delays attributable to both the State and the defense postponed the preliminary hearing on this complaint to September 19, 1968, on which date the court heard evidence and continued the hearing until October 9. On that date the court again continued the matter on the State's motion until November 1, 1968. On October 30, 1968, however, the grand jury returned an indictment against the defendant which charged her with the theft of over $150 from Star Foods, Inc.

This indictment stated the date of the offense as January 23, 1967. The defendant pleaded not guilty at her arraignment on November 14. The indictment was pending throughout 1969. It was set for trial on nine different dates, but was continued each time on motion of the prosecution, the defense, or by agreement.

The defendant first demanded trial on February 10, 1970; over her objection the case was continued until March 20. Thereafter three more continuances were granted over the defendant's objections, the third of which postponed the trial until June 15. On June 11, 1970, the grand jury returned a second indictment against the defendant for theft of over $150 from Star Foods, Inc. This indictment charged that the transactions upon which it was based took place during the period from August 5, 1967, through February 2, 1968. The defendant was arraigned on this indictment on June 15, 1970, and on the same date she filed a motion to dismiss both indictments because more than 120 days had elapsed since her demand for trial on February 10. On June 30, when the trial judge denied the motion, he based his ruling on the amended statute. (Ill.Rev.Stat.1969, ch. 38, par. 103--5(b)), which had taken effect on August 28, 1969. The original indictment against the defendant was eventually stricken, and she went to trial and was convicted on the second indictment.

The first question to be considered is whether the General Assembly intended the statutory change to apply to pending cases. Section 4 of the Statutory Construction Act (Ill.Rev.Stat.1969, ch. 131, par. 4) provides:

'No new law shall be construed to repeal a former law, * * * as to any * * * right accrued, or claim arising under the former law, or in any way whatever to affect any * * * right accrued, or claim arising before the new law takes effect, save only that the proceedings thereafter shall conform, so far as practicable, to the laws in force at the time of such proceeding.'

The situation resembles that which has been encountered in civil cases involving statutory changes in the time within which an action must be commenced. Many cases of that kind are discussed in Orlicki v. McCarthy (1954), 4 Ill.2d 342, 122 N.E.2d 513, where it was held that such a limitation was procedural, and that a reduction in the period prescribed could operate retroactively so long as a reasonable period remained after the enactment of the new limitation within which the action could be commenced. There appears also to be widespread agreement that a legislative body can extend the period of limitations as to criminal offenses which occurred prior to the effective date of the change without violating the constitutional prohibition against Ex post facto laws, so long as the extended period does not apply to any case in which the accused has acquired, as of the effective date of the change, a right to acquittal through the running of the original statute. People v. Buckner (1917), 281 Ill. 340, 347, 117 N.E. 1023; People v. Isaacs (1967), 37 Ill.2d 205, 226 N.E.2d 38; Clements v. United States (9th Cir. 1959), 266 F.2d 397, cert. denied, 359 U.S. 985, 79 S.Ct. 943, 3 L.Ed.2d 934; Falter v. United States (2d Cir. 1928), 23 F.2d 420, cert. denied, 277 U.S. 590, 48 S.Ct. 528, 72 L.Ed. 1003; ...