People v. Donalson

• Decision Date: 01 October 1976
• Docket Number: No. 48003,48003
• Citation: 356 N.E.2d 776,64 Ill.2d 536,1 Ill.Dec. 494
• Parties: , 1 Ill.Dec. 494 The PEOPLE of the State of Illinois, Appellant, v. Carl B. DONALSON, Appellee.
• Court: Illinois Supreme Court

Page 776

356 N.E.2d 776

64 Ill.2d 536, 1 Ill.Dec. 494

The PEOPLE of the State of Illinois, Appellant, v. Carl B. DONALSON, Appellee.

No. 48003.

Supreme Court of Illinois.

Oct. 1, 1976.

William J. Scott, Atty. Gen., Springfield, Bernard Carey, State's Atty., Chicago (James B. Zagel, Jayne A. Carr, Asst. Attys. Gen., Laurence J. Bolon, Michael E. Shabat, Iris E. Sholder, and Michael J. Angarola, Asst. State's Attys., of counsel), for the People.

James Geis, Deputy, State App. Defender, Chicago (Kenneth L. Jones, Asst. State App. Defender, Chicago, of counsel), for appellee.

CREBS, Justice:

The defendant was convicted of the offenses of murder and attempt armed robbery and sentenced to a term of 20 to 40 years in the penitentiary for the offense of murder. The Appellate Court for the First District reversed the conviction, holding that the defendant had been denied his right to be tried within 120 days from the date he was taken into custody. (People v. Donalson, 32 Ill.App.3d 195, 336 N.E.2d 539.) We have granted the State's petition for leave to appeal.

The defendant was taken into custody on January 29, 1972. He was subsequently charged with murder and armed robbery and ordered held without bail. On January 31, 1972, the defendant appeared in court and requested a continuance in order that he might have time to retain an attorney. Pursuant to that request, the court ordered the cause continued until February 15, 1972. On April 25, 1972, the defendant's retained counsel filed his appearance and a demand for trial. On the same date the State filed a motion for discovery. On May 5, 1972, the defendant filed a motion for discovery, and the court ordered the cause continued until June 8, 1972. On May 19, 1972, the defendant filed in open court a motion to suppress his confession, a motion for a copy of the minutes of the preliminary hearing without charge and a motion to have the defendant examined by a physician in the county jail. The court granted the motion for examination of the defendant by a physician and denied the motion for a free copy of the minutes of the preliminary hearing. Defense counsel made no attempt to obtain a hearing date for the motion to suppress but did inform the court that he would be filing additional motions on June 8, 1972. On that date, the State filed an answer to the defendant's discovery motion, and the defendant orally moved for discharge, alleging that the State had failed to bring him to trial in accordance with section 103--5 of the Code of Criminal Procedure (Ill.Rev.Stat.1971, ch. 38, par. 103--5). The defendant was then given 5 days to file a written motion Nunc pro tunc. On July 7, 1972, the court, after hearing arguments, denied the defendant's motion for discharge. The defendant was subsequently tried by a jury and convicted.

The defendant made several allegations of error in his appeal to the appellate court. The appellate court, without addressing itself to the other issues raised by the defendant, reversed the conviction on the ground that the defendant had not been brought to trial in accordance with section 103--5. The appellate court reasoned that, because the defendant had moved for a continuance and the case was then continued to February 15, 1972, the 120-day term began running on February 15 and ended on June 14, 1972. The appellate court further reasoned that, since the defendant's motion for discharge had not been heard until the 143rd day of the term and since there had been no delay occasioned by the defendant, the motion for discharge should have been granted. The State contends that the several motions filed by the defendant after February 15, 1972, constituted delays occasioned by the defendant and therefore tolled the running of the statute.

Section 103--5(a) of the Code of Criminal Procedure provides in relevant part:

'Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant * * *.' (Ill.Rev.Stat.1971, ch. 38, par. 103--5(a).)

The parties are in agreement that the running of the statute was tolled by the defendant's initial request for a continuance. When a continuance is granted on the motion of the defendant within the 120-day statutory period, the continuance constitutes a delay occasioned by the defendant. (People v. Gooding, 61 Ill.2d 298, 335 N.E.2d 769.) With respect to an offense allegedly committed on or after March 1, 1977, a delay occasioned by the defendant temporarily suspends for the time of the delay the period within which the defendant shall be tried. (Pub. Act 79--1237.) With respect to offenses allegedly committed prior to March 1, 1977, however, a delay occasioned by the defendant tolls the running of the statute, and a new statutory period commences to run from the date to which the case had been delayed. (People v. Lee, 44 Ill.2d 161, 254 N.E.2d 469.) In the instant case, therefore, the continuance granted on the defendant's request constituted a delay occasioned by the defendant and a new statutory period began running on February 15, 1972.

The defendant's discovery motion was filed on the 80th day of the term, while the motion to suppress, the motion for a copy of the minutes of the preliminary hearing without charge and the motion to have the defendant examined by a physician in the county jail were filed on the 94th day of the term. The latter two motions, contrary to the argument advanced by the State,...