People v. Bowman
| Decision Date | 17 March 1989 |
| Docket Number | No. 3-88-0197,3-88-0197 |
| Citation | 180 Ill.App.3d 755,536 N.E.2d 449 |
| Court | United States Appellate Court of Illinois |
| Parties | , 129 Ill.Dec. 609 The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Ricky BOWMAN, Sr., Defendant-Appellee. |
Gary F. Gnidovec, States' Attorney's Appellate Prosecutor, Ottawa, and James T. Teros, State's Attorney, Rock Island, for the People.
Richard P. Coppula, Rock Island, for Ricky Bowman, Sr.
The trial court granted defendant Ricky Bowman's motion to dismiss, based on a violation of his statutory right to a speedy trial. The State appeals the order.
On April 29, 1987, the defendant was charged in a criminal complaint with residential burglary. On August 6, 1987, the defendant was placed in the Rock Island County Jail and on the same day a public defender was appointed to represent him. The next day, the defendant demanded a speedy trial. On August 11, 1987, attorney Fred Kopp was appointed to represent the defendant. Kopp had a contract with the County of Rock Island to represent criminal defendants who might have a conflict with the public defender's office. On October 8, 1987, the defendant was arraigned and a trial date of November 23, 1987, was set.
On November 1, 1987, attorney Alexander Jarrin replaced Kopp as conflicts public defender, since Kopp had terminated his employment with the County of Rock Island effective October 31, 1987. On November 18, 1987, Jarrin filed a motion to remove the defendant's case from the November jury list and to continue the case, alleging that he had insufficient time to prepare a defense. Although Jarrin and the prosecutor stipulated that the delay would be attributable to the defendant, their stipulation was not included in the order granting the motion. The defendant was not present when the motion was presented nor was a hearing conducted on the motion.
In mid-January of 1988, the defendant wrote a letter to the chief judge stating that he had not wanted a continuance and that he had desired to go to trial on November 23, 1987. He further pointed out that he had not had a trial date set since the continuance. Approximately two weeks later, the defendant again wrote to the chief judge, requesting that attorney Richard Coppula be appointed to represent him.
On February 19, 1988, Coppula filed an entry of appearance on behalf of the defendant and Jarrin was allowed to withdraw. On that same day, the defendant filed a motion to dismiss, alleging a violation of the Speedy Trial Act (Ill.Rev.Stat.1987, ch. 38, par. 103-5). The defendant had been in custody continuously for a period of 197 days, from August 6, 1987, until his motion to dismiss was filed. Following a hearing, the trial court granted the defendant's motion, discharging the defendant. On February 24, 1988, the State filed a motion to reconsider, which the trial court subsequently denied.
On appeal, the State argues that the trial court erred in granting the defendant's motion to dismiss. The State contends that the 120-day speedy trial period was tolled by the defendant's motion to remove his case from the jury list and to continue the matter.
Section 103-5(a) of the Code of Criminal Procedure (Ill.Rev.Stat.1987, ch. 38, par. 103-5(a)), provides that an accused in custody is to be brought to trial within 120 days from the date he was taken into custody, unless delay is occasioned by the defendant. When a court-appointed counsel withdraws on his own initiative due to a conflict of interest, any resulting delay cannot be charged to the defendant (People v. Roberts (1985), 133 Ill.App.3d 731, 88 Ill.Dec. 773, 479 N.E.2d 386), unless the withdrawal was made under circumstances from which it may be inferred that the defendant acquiesced in the delay (People v. McGuire (1984), 123 Ill.App.3d 908, 79 Ill.Dec. 487, 463 N.E.2d 1041). Since the trial court is in a better position to determine whether the defendant acquiesced in the delay, a reviewing court will affirm its decision unless it amounts to an abuse of discretion. People v. Keagbine (1979), 77 Ill.App.3d 1039, 33 Ill.Dec. 617, 396 N.E.2d 1341.
At the hearing on the instant defendant's motion to dismiss, the defendant testified that he was not notified until November 18, 1987, that attorney Kopp no longer represented him. The defendant further testified that he was not aware that his newly appointed counsel, Alexander Jarrin, had filed a motion for a continuance until two days after it was filed. The defendant testified that he told Jarrin that he did not want a continuance.
Kopp testified on behalf of the State that he had informed the defendant in late October that Jarrin would be taking over the case and would probably need more time to prepare. Kopp also explained to the defendant that he could either have the case settled before Kopp left or go to trial with a new lawyer. The defendant then told Kopp that he did not want to plea bargain. The defendant further indicated that a continuance would be fine because he wanted to spend as much time as he could in the Rock Island County Jail. According to Kopp, the defendant believed that time spent in the Rock Island County Jail would be credited against time he was required to serve in an Iowa correctional facility. Kopp also testified that the defendant was aware of the speedy trial provision. Kopp explained to the defendant that any motion they made would toll the time in which the State had to bring him to trial.
Under the circumstances of the instant case, we find that the defendant did not voluntarily acquiesce in the delay occasioned by the withdrawal of his counsel. The defendant was faced with the choice of either going to trial with unprepared counsel or asking for a continuance and foregoing his right to a speedy trial. The defendant was placed in a compromising position not as a result of his actions, but as a result of the acts of his two attorneys and the County of Rock Island. We agree with the trial judge's finding that "if the defendant did acquiesce in the motion to continue, he did so only under duress and not voluntarily."
Further, under the circumstances of the instant case, we do not find it significant that the defendant's counsel stipulated that delay would be chargeable to the defendant. The defense counsel withdrew from the case on his own initiative, not at the insistence of the defendant. As such, any resulting delay cannot be charged to the defendant. People v. Roberts (1985), 133 Ill.App.3d 731, 88 Ill.Dec. 773, 479 N.E.2d 386. The State's second argument on appeal is that dismissal for a speedy trial violation is discretionary and not mandatory. It therefore contends that the trial court erred in automatically dismissing the defendant's case. The State's argument rests on an analysis of the distinction between the use of the mandatory "shall" contained in section 103-5(a) of the Code of Criminal Procedure (Ill.Rev.Stat.1987, ch. 38, par. 103-5(a)), as opposed to the use of the permissive "may" contained in section 114-1(a) of the Code of Criminal Procedure (Ill.Rev.Stat.1987, ch. 38, par. 114-1(a)).
In People v. Jones (1986), 145 Ill.App.3d 804, 99 Ill.Dec. 595, 495 N.E.2d 1330, we previously rejected the State's instant statutory construction argument. Although the statutory speedy trial period is not co-extensive with the constitutional right to a speedy trial, if an accused is not brought to trial within the 120-day term and he has not occasioned any delay in trial, he is entitled to dismissal of the charges. People v. Jones (1986), 145 Ill.App.3d 804, 99 Ill.Dec. 595, 495 N.E.2d 1330.
For the foregoing reasons, the judgment of the circuit court of Rock Island County is affirmed.
AFFIRMED.
In the instant case, defense counsel filed a motion to remove the defendant's case from the jury list and to continue the matter. The basis of counsel's motion was the fact that he had been assigned to the defendant's case on November 1, 1987, and that he had an insufficient amount of time to adequately prepare the defense for trial, which was scheduled for November 23, 1987. In addition, defense counsel...
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People v. Davis, 2-88-0288
...or the trial court, and it is apparent that phrase and the defendant's unsupported assertion above are too imprecise for this [180 Ill.App.3d 755] court to take judicial notice of their existence. (See In re Marriage of Aud (1986), 142 Ill.App.3d 320, 325-26, 96 Ill.Dec. 615, 619, 491 N.E.2......
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People v. Solis
...... On appeal, defendant again cites Roberts and Collum in addition to People v. Bowman" (1989), 180 Ill.App.3d 755, 129 Ill.Dec. 609, 536 N.E.2d 449, in urging that there was no continuance of the trial attributable to defendant. We note, however, that the decision in Bowman has been recently reversed. People v. Bowman (1990), 138 Ill.2d 131, 149 Ill.Dec. 263, 561 N.E.2d 633. \xC2"......