People v. Baker, 5-93-0405

• Decision Date: 12 July 1995
• Docket Number: No. 5-93-0405,5-93-0405
• Citation: 652 N.E.2d 858,273 Ill.App.3d 327,210 Ill.Dec. 56
• Parties: , 210 Ill.Dec. 56 The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Jack T. BAKER, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 858

652 N.E.2d 858

273 Ill.App.3d 327, 210 Ill.Dec. 56

The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Jack T. BAKER, Defendant-Appellee.

No. 5-93-0405.

Appellate Court of Illinois Fifth District.

July 12, 1995.

Roland W. Burris, Atty. Gen., Rosalyn Kaplan, Sol. Gen., Arleen C. Anderson, Karen Alice Kloppe, Asst. Attys. Gen., Springfield, for appellant.

Daniel M. Kirwan, Deputy Defender, Janet Gandy Fowler, Asst. Defender, Office of the State Appellate Defender, Mount Vernon, for appellee.

Justice RARICK delivered the opinion of the court:

The State appeals from the grant of defendant's motion to dismiss for failure to bring him to trial within 160 days from his demand for a speedy trial.

On October 13, 1989, defendant Jack T. Baker was indicted for violations of the Illinois Securities Act of 1953 (Ill.Rev.Stat.1989, ch. 121 1/2, par. 137.12(f)) and theft over $300 (Ill.Rev.Stat.1989, ch. 38, par. 16-1(a)(2)). It appears that defendant, who was a resident of New York State, may have passively resisted extradition.

On January 17, 1990, defense counsel filed his appearance and filed a demand for speedy trial, despite the fact that defendant had not yet been arrested. On January 19, 1990, a warrant issued for his arrest, defendant was arrested, and he was formally arraigned. He made bond and was allowed to return to his home in New York State, and trial was set for April 16, 1990.

On March 14, 1990, defendant's attorney moved to withdraw from representing defendant because of conflicts involving payment for his services. This motion was granted on March 30, 1990. The court appointed new counsel for defendant on May 14, 1990, but on May 18, 1990, she sought leave to withdraw, based upon a conflict of interest which stemmed from her purchase of stock in the allegedly fraudulent investment project for which defendant was being prosecuted. Leave was granted, and the court again appointed new counsel on June 15, 1990. On July 13, 1990, counsel entered his appearance.

On October 18, 1990, defendant filed a motion to dismiss for failure to provide a speedy trial as demanded by defendant's original counsel on January 17, 1990. The motion was denied on February 10, 1992. The court found the January 17, 1990, speedy trial demand was a nullity due to prematurity, in that counsel submitted the demand prior to defendant's arrest.

On March 5, 1992, defendant filed a new demand for speedy trial. On April 27, 1992, the case was set for a May 6, 1992 pretrial conference and trial on July 8, 1992. The record is devoid of the reasons therefor, but on May 28, 1992, the case was reset for trial on August 3, 1992.

On July 10, 1992, defendant moved to continue the trial "to a later date." The motion was granted on July 14, 1992. On November 10, 1992, the State filed a motion to set a court date, and on December 8, 1992, a pretrial conference was set for January 25, 1993.

On January 24, 1993, the case was called. The docket notes indicate that a jury trial was to be set and a status hearing was scheduled for March 1, 1993.

On February 10, 1993, defendant filed a motion to waive his appearance at the March 1, 1993, status hearing. The court granted defendant's motion on February 26, 1993, and the status hearing was moved to March 15, 1993. On that date the case was set for jury trial on June 7, 1993.

Defendant filed a motion to dismiss on March 18, 1993, and on March 26, 1993, the State moved for a trial setting on or before April 16, 1993. Three days later, notice of an April 12, 1993, trial date was filed. On April 8, 1993, defendant moved for a continuance of the April 12, 1993, trial setting, stating that "counsel for [d]efendant needs additional time in which to prepare for trial." The continuance was granted, and the case was continued to June 7, 1993.

On May 20, 1993, a hearing was conducted on defendant's motion to dismiss. No report of proceedings is available, but the order entered set forth the various time spans of delays attributable to the parties and found that the 160 days in which the State had to bring defendant to trial expired on or about September 5, 1992.

Criminal defendants are guaranteed the right to a speedy trial by both the Federal and the State constitutions. (U.S. Const. amends. VI, XIV; Ill. Const. 1970, art. I, § 8; see Klopfer v. North Carolina (1967), 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1.) Section 103-5(b) of the Criminal Code of Procedure of 1963 (Code) (725 ILCS 5/103-5(b) (West 1992)) governs the periods of time within which an accused must be brought to trial. The rights established by the constitutional and statutory provisions are similar, but not necessarily coextensive. People v. Garrett (1990), 136 Ill.2d 318, 323, 144 Ill.Dec. 234, 237, 555 N.E.2d 353, 356.

Section 103-5(b) of the Code provides:

"Every person on bail or recognizance shall be tried by the court having jurisdiction within 160 days from the date defendant demands trial unless delay is occasioned by the defendant * * *." 725 ILCS 5/103-5(b) (West 1992).

A defendant who has posted bond or been released on his own recognizance must make a demand for a speedy trial in order to start the 160-day period in which trial must commence. (People v. Lock (1994), 266 Ill.App.3d 185, 189, 203 Ill.Dec. 675, 679, 640 N.E.2d 334, 338.) Defendant's first demand for a speedy trial was correctly found to be a nullity because it was made when defendant had not been arrested or held in custody, much less arraigned and released on bond. (See Garrett, 136 Ill.2d at 329-30, 144 Ill.Dec. at 240, 555 N.E.2d at 359 (language of 160-day speedy trial provision contemplates that demand will be made by a defendant who is on bail or recognizance at time; earlier demand is premature).) A demand for a speedy trial must be clear and unequivocal. It must be set forth in the title or heading of any pleading containing the demand, it must state that the defendant "demands a speedy trial," a phrase which the courts recognize as a term of art, and the body of the pleading must make explicit reference to the speedy trial statute in order for the demand to qualify as clear and unequivocal. (People v. Ground (1994), 257 Ill.App.3d 956, 959, 196 Ill.Dec. 238, 240-41, 629 N.E.2d 783, 785-86 (citing People v. Holm (1989), 188 Ill.App.3d 908, 914-15, 136 Ill.Dec. 462, 467-68, 544 N.E.2d 1237, 1242-43).) The Ground court held that "a defendant's demand for speedy trial is 'clear and unequivocal' only when the foregoing requirements are met." (Emphasis in original.) (Ground, 257 Ill.App.3d at 960, 196 Ill.Dec. at 240-41, 629 N.E.2d at 785-86.) (Accord People v. Erickson (1994), 266 Ill.App.3d 273, 277, 203 Ill.Dec. 420, 423, 639 N.E.2d 979, 982.) Defendant's second demand for a speedy trial set forth the words "speedy trial demand" in the heading, as well as in the body of the pleading, but failed to make explicit reference to the speedy trial statute. Under the Ground decision, defendant's March 5, 1992, demand, which did not refer to the statute, was insufficient to constitute a clear and unequivocal demand for a speedy trial. We find that no cognizable demand for a speedy trial was made by defendant, and thus the date set for trial, June 7, 1993, posed no speedy trial problem for the State.

Even if defendant's March 5, 1992, demand had been sufficient under Ground, he would not prevail. Defendant moved for a continuance on July 10, 1992. The motion stated that "[d]efendant has advised counsel that he needs additional time in which to prepare for trial," and the motion sought a continuance "to a later date." The State argues that the motion to continue was in essence a request for an indefinite continuance. It maintains that because defendant did not request a continuance to a day certain, all of the time between his July 10, 1992, request for continuance and the next trial setting of April 12, 1993, is attributable to defendant and should not be computed in the 160 days in which the State was required to bring him to trial. We agree.

All continuances should be to a date certain in order to facilitate efficient administration of the court system. As the supreme court observed in People v. Siglar (1971), 49 Ill.2d 491, 497, 274 N.E.2d 65, 68:

"It is in the interest of the defendant, the People and the Court, that all continuances be made to a day certain. Indefinite continuances are an anathema to the law." (Emphasis added.) (Siglar, 49 Ill.2d at 497, 274 N.E.2d at 68 (citing People v. Williams (1949), 403 Ill. 429, 432, 86 N.E.2d 355, 356).)

Defendant's motion merely requested a continuance in order that defendant be able to prepare for trial, without setting a date on which he would be prepared to defend himself. Where a defendant expressly agrees to or...