People v. Farnsworth

• Decision Date: 15 September 1975
• Docket Number: No. 74--256,74--256
• Citation: People v. Farnsworth, 335 N.E.2d 18, 31 Ill.App.3d 771 (Ill. App. 1975)
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellant, v. James B. FARNSWORTH, Defendant-Appellee.
• Court: Appellate Court of Illinois

Page 18

335 N.E.2d 18

31 Ill.App.3d 771

PEOPLE of the State of Illinois, Plaintiff-Appellant, v. James B. FARNSWORTH, Defendant-Appellee.

No. 74--256.

Appellate Court of Illinois, Second District, Second Division.

Sept. 15, 1975.

Gerry L. Dondanville, State's Atty., Geneva, for plaintiff-appellant.

Stephen M. Cooper, Geneva, for defendant-appellee.

RECHENMACHER, Presiding Justice:

The State has appealed from the trial court's dismissal of an indictment for attempt murder and attempt robbery where the defendant was brought to trial within 120 days of the return of the mandate to the trial court, but 163 days after the Supreme Court's denial of the State's petition for leave to appeal.

On April 5, 1973, upon defendant's appeal from the trial court's denial of all post-conviction relief, we reversed defendant's conviction of the charge of attempt murder, and remanded the case with directions to allow defendant to withdraw his guilty plea and to plead anew (10 Ill.App.3d 844, 295 N.E.2d 83.). Thereafter, we allowed the State's motion to recall the mandate (previously returned to the trial court) pending disposition of the State's petition for leave to appeal to the Supreme Court of Illinois. On September 26, 1973, the Supreme Court denied the State's petition and on October 25, 1973, the clerk of this court received the mandate from the clerk of the Illinois Supreme Court.

In the meantime, on October 14, 1973, defendant, after receiving a letter from Richard Cooper (who had been appointed defendant's counsel in the appeal), mailed a letter to the presiding judge of the circuit court of Kane County calling attention to the denial of leave to appeal, stating the defendant was awaiting return to Kane County circuit court for re-arraignment, and requesting appointment of counsel to represent him. That letter was in turn forwarded by the judge to the State's Attorney of Kane County. On October 23 1973, the State's Attorney wrote to his appeals' attorney referring to the denial of leave to appeal and requesting that, 'as soon as the mandate is issued', action be taken to bring the defendant for re-arraignment and re-trial.

On March 8, 1974, after attorney Stephen Cooper, son of defendant's court appointed counsel, telephoned the clerk of this court regarding the mandate, the clerk returned the mandate to the trial court. On March 12, 1974, on the State's petition, a writ of Habeas corpus was issued commanding the superintendent of the Joliet Correctional Center to produce defendant on April 3, 1974, at the Kane County Court House. On that date the trial court entered an order, pursuant to the mandate, withdrawing defendant's guilty plea and vacating the dismissal of the attempt robbery charge; the court also appointed Stephen Cooper counsel to represent defendant, defendant was re-arraigned on the original indictment for attempt murder and attempt robbery and defendant pleaded not guilty. His counsel also filed a motion to dismiss for failure to afford defendant a speedy trial. On April 24, 1974, the trial court entered its order dismissing the indictment.

Section 103--5(a) and (d) of the Criminal Code (Ill.Rev.Stat.1973, ch. 38, par. 103--5(a) and (d)) provides that '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 * * *', and unless so tried he shall be discharged from custody. Supreme Court Rule 604(a)(4) (Ill.Rev.Stat.1973, ch. 110A, par. 604(a)(4)) provides in substance that 'The time during which an appeal by the State is pending is not counted * * *'. Supreme Court Rule 368(a) (Ill.Rev.Stat.1973, ch. 110A, par. 368(a)) requires the clerk of the reviewing court to transmit the mandate to the circuit court 'not earlier than 21 days after the entry of judgment unless the court orders otherwise.' Here 120 days did not elapse between the time the trial court obtained jurisdiction for the new trial and the time defendant was presented to the court for the new trial. The trial court did not acquire jurisdiction for the new trial until the date...