People v. Cornwell

• Decision Date: 05 February 1973
• Docket Number: 72--88 and 72--89,Nos. 72--87,s. 72--87
• Citation: 9 Ill.App.3d 799,293 N.E.2d 139
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Fred Effel CORNWELL et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 139

293 N.E.2d 139

9 Ill.App.3d 799

The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Fred Effel CORNWELL et al., Defendants-Appellees.

Nos. 72--87, 72--88 and 72--89.

Appellate Court of Illinois, Fifth District.

Feb. 5, 1973.

Robert H. Rice, State's Atty. of St. Clair County, Belleville, for plaintiff-appellant.

Sprague, Sprague & Ysursa, Belleville, for defendants-appellees; John R. Sprague, Jr., Belleville, of counsel.

EBERSPACHER, Presiding Justice.

The People of the State of Illinois appeal from the judgment of the Circuit Court of St. Clair County discharging defendants from custody upon allowance of their motions based upon Section 103--5(b) of the Code of Criminal Procedure (Ill.Rev.Stat., ch. 38, par. 103--5(b).)

On September 14, 1970 each of the three defendants was charged by information with the offense of theft under $150. The defendants were admitted to bail and on January 6, 1971 filed a demand for a speedy trial. On May 26, 1971, the cases were called for trial. The defendants failed to appear and with agreement of their counsel the cases were continued. It appears from the record that the cases were called for trial on July 6, 1971 at which time the defendants appeared and answered ready for trial and was not reached; that again on September 13, 1971, the cause was called for trial and was at that time continued by the State, that on November 11, 1971 on motion of the State's Attorney and without notice to defendants, the cases were transferred to the misdemeanor docket. On December 17, 1971 a notice was filed notifying the defendants that the cases would be heard on January 10, 1972, at which time the defendants appeared and filed their motion for dismissal, which were allowed and the cases dismissed.

The State here contends that the defendants on trial who demanded a speedy trial and thereafter agreed to a general continuance have waived their demand for a speedy trial subject to filing a new one; that the case is clearly controlled by the wording of the statute itself without resort to case citations.

In Dickey v. Florida, 398 U.S. 30, at page 49, 90 S.Ct. 1564, at page 1575, 26 L.Ed.2d 26, at page 39, Mr. Chief Justice Burger, speaking for a unanimous court, stated:

'* * * Over 30 years ago in Johnson v. Zerbst, 304 U.S. 458, 464, 1023, 58 S.Ct. 1019, 82 L.Ed. 1461, 1468, 146 A.L.R. 357 (1938), we defined 'waiver' as 'an intentional relinquishment or abandonment of a known right or privilege.' We have made clear that courts should 'indulge every reasonable presumption against waiver.' (case cited) and that they should 'not presume acquiescence in the loss of fundamental rights."

The constitutional guarantee of a speedy trial is implemented by the statutory provisions of Ill.Rev.Stat.1971, ch. 38, par. 103--5. Subsection 103--5(b) provides that every person on bail or recognizance shall be tried within 160 days from the date the defendant demanded trial, unless the delay is occasioned by the defendant. The sole issue presented is whether the defendants were required to renew their demand for trial after the continuance of May 26, 1971.

It is clear that the defendants' actions caused delay of the trial setting of May 26, 1971. Accordingly, the defendants' conduct relieved the State of the burden of providing a trial within 160 days from the date of the demand, January 6, 1971. In the case of a person in custody, subsection 103--5(a) of the statute provides for a speedy trial within 120 days unless delay is occasioned by the defendant. Under that subsection it is not necessary that a defendant make a demand, but rather the 120-day rule is automatically applicable. Thus, under that subsection when a defendant causes a delay, the running of the statute is merely tolled and the period begins to run anew from the date to which the cause is continued. People v. Bagato, 27 Ill.2d 165, 188 N.E.2d 716; People v. Hill, 3 Ill.App.3d 286, 278 N.E.2d 441.

Here, as in People v. Siglar, 49 Ill.2d 491, 274 N.E.2d 65, the continuance agreed to on May 26, 1971, was not to any definite date. In that case the failure to try the defendant within the 120 day requirement was due to the indefinite continuance which he obtained and quoting from People v. Williams, 403 Ill. 429 at page 432, 86 N.E.2d 355 at page 356, the Court said, 'The failure to try him within the statutory period was due to his agreement to an indefinite continuance; Hence the statute does not apply'. (Emphasis supplied.) Our Supreme Court in Siglar went on to admonish against continuances not made to a day certain.

The theory pronounced in People v. Siglar, that if a defendant agrees to an indefinite continuance, the statute does not apply, cannot be said to be positive that a new or renewed demand under the 160 day rule would be required to commence the running anew of the statute in the case at hand.

We have found no prior Illinois case where it has been contended that a delay occasioned by the defendant waives the prior demand for trial made...