People v. Garrett

• Decision Date: 23 May 1990
• Docket Number: No. 68601,68601
• Citation: 136 Ill.2d 318,555 N.E.2d 353,144 Ill.Dec. 234
• Parties: , 144 Ill.Dec. 234 The PEOPLE of the State of Illinois, Appellee, v. Kevin Clay GARRETT, Appellant.
• Court: Illinois Supreme Court

Page 353

555 N.E.2d 353

136 Ill.2d 318, 144 Ill.Dec. 234

The PEOPLE of the State of Illinois, Appellee, v. Kevin Clay GARRETT, Appellant.

No. 68601.

Supreme Court of Illinois.

May 23, 1990.

Thomas E. Hildebrand, Jr., Granite City, for appellant.

Neil F. Hartigan, Atty. Gen., Springfield (Robert J. Ruiz, Sol. Gen., and Terence M. Madsen and Marcia L. Friedl, Asst. Attys. Gen., Chicago, of counsel), for people.

Justice MILLER delivered the opinion of the court:

The defendant, Kevin Clay Garrett, was charged in the circuit court of Madison County with two counts of attempted murder, one count of unlawful use of a firearm by a felon, and one count of defacing identification marks on a firearm. All four charges were later dismissed on the defendant's motion alleging the State's failure to commence trial within the time period prescribed by section 103-5(b) of the Code of Criminal Procedure of 1963 (Ill.Rev.Stat.1987, ch. 38, par. 103-5(b)). The appellate court reversed the dismissal order and remanded the cause for further proceedings. (180 Ill.App.3d 482, 129 Ill.Dec. 393, 536 N.E.2d 77.) We allowed the defendant's petition for leave to appeal (107 Ill.2d R. 315(a)), and we now affirm the judgment of the appellate court.

The procedural history of this case is not disputed. The defendant was taken into custody on March 9, 1987, following an alleged shootout with officers of the Madison and Venice, Illinois, police departments. The defendant was charged by information on March 10, 1987, with two counts of attempted murder and one count of unlawful possession of a firearm by a felon. Bail was set that day at $400,000. At his arraignment on March 27, 1987, the defendant, through counsel, pleaded not guilty to the charges and made an oral demand for a speedy jury trial. On March 30, defense counsel filed of record a document styled "Entry of Appearance, Plea of Not Guilty, and Demand for a Speedy Jury Trial." It stated, in its entirety, "Now comes Brandt, Slate & Hildebrand, and enter their appearance as attorneys of record on behalf of the Defendant, enter a plea of Not Guilty on behalf of said Defendant, and demand a speedy jury trial." An amended information was filed on April 24, 1987, realleging the three original offenses and adding a fourth count, defacing identification marks on a firearm. At the arraignment on the new charge, the defendant, through counsel, again pleaded not guilty and made an oral demand for a speedy jury trial.

On May 27, 1987, bail was reduced to $75,000 on the defendant's motion. Two days later, on May 29, the defendant posted sufficient bond and was released from custody. The case had been originally scheduled for trial on June 8, 1987, but the defendant filed a motion that day for a continuance; the motion was granted on June 10, and the case was continued to the July 1987 call. The defendant answered ready at a docket call on July 8, 1987; the next day, July 9, the matter was reassigned to a different judge. On August 5, 1987, the case was continued on the State's motion.

On October 5, 1987, the State moved for and was granted another continuance. The basis for the State's request was that the prosecutor who was handling the case was then on trial in another matter. The motion also asserted that the defendant had not made a speedy-trial demand while on bail and that the demand made by the defendant while in custody was not in effect. At the hearing that day on the State's motion, there was some discussion of the speedy-trial question and the effect to be accorded the defendant's in-custody demand for trial. The parties represented that the hearing was being held on the 160th day following the date the defendant's demand was filed of record, excluding the period of delay chargeable to the defendant. At the conclusion of the hearing the circuit judge continued the matter on the State's motion.

On October 13, 1987, the defendant moved to dismiss the present charges on the ground that he had not been brought to trial within 160 days of the filing of his demand for a speedy trial, as required by section 103-5(b) of the Code of Criminal Procedure of 1963 (Ill.Rev.Stat.1987, ch. 38, par. 103-5(b)). In an order entered November 18, 1987, the circuit judge granted the defendant's motion and dismissed the pending charges. (See Ill.Rev.Stat.1987, ch. 38, par. 114-1(a)(1).) In the written order, the judge explained that a speedy-trial demand made by an accused in custody may be given continuing effect, from the date it is made, in the event the accused is later released from custody. The judge noted that the State was aware of the defendant's demand for trial and of his subsequent release from custody.

The State appealed from the order dismissing the charges. (See 107 Ill.2d R. 604(a)(1).) With one justice dissenting, the appellate court reversed the circuit judge's ruling and remanded the cause for further proceedings. (180 Ill.App.3d 482, 129 Ill.Dec. 393, 536 N.E.2d 77.) The appellate court believed that the speedy-trial demand made by the defendant while in custody "was insufficient to put the State on notice that [the defendant] desired a speedy trial once he was released on bail." (180 Ill.App.3d at 486, 129 Ill.Dec. 393, 536 N.E.2d 77.) The court concluded that the defendant's demand was not a continuing one and thus did not operate once the defendant was released from custody. The dissenting justice believed that the defendant's in-custody demand for trial should be given effect under the statute. We allowed the defendant's petition for leave to appeal. 107 Ill.2d R. 315(a).

Both the Federal and the State Constitutions guarantee an accused the right to a speedy trial. (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.) An additional right is found in section 103-5 of the Code of Criminal Procedure of 1963, which specifies periods of time within which an accused must be brought to trial. (Ill.Rev.Stat.1987, ch. 38, par. 103-5.) Although the constitutional and statutory provisions address similar concerns, the rights established by them are not necessarily coextensive. (People v. Richards (1980), 81 Ill.2d 454, 459, 43 Ill.Dec. 700, 410 N.E.2d 833.) In the present case, the defendant asserts only a violation of the statutory provision.

Section 103-5 provides in pertinent part:

"(a) 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, * * *.

(b) 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, * * *." (Ill.Rev.Stat.1987, ch. 38, pars. 103-5(a), (b).)

The two provisions differ in several material respects. Section 103-5(a) is applicable to those who are in custody, and it provides a 120-day period within which trial must commence. That period begins to run automatically when the accused is taken into custody, and no demand for trial is necessary. Section 103-5(b), available to those who have been released on bail or recognizance, allows 160 days in which to commence trial. Under that provision a demand for trial is required, and the period provided by the statute does not begin to run until the demand is made.

In support of the trial court's ruling dismissing the present charges, the defendant contends that an in-custody demand for a speedy trial should be accorded continuing effect from the time it is made. The defendant maintains that there is no language in section 103-5(b) requiring that the demand for trial be made while an accused is on bail or recognizance. The defendant argues that the failure to give continuing effect to an in-custody demand would enable the State to fashion a "280-day rule" out of the separate time periods provided by sections 103-5(a) and 103-5(b). In response, the State contends that the speedy-trial period provided by section 103-5(b) for persons on bail or recognizance is not triggered by a general, in-custody demand for trial unaccompanied by an attempt to seek release from custody. In addition, the State disclaims any reliance on a "280-day rule" and, without citation of authority, states that time spent in custody may be credited toward the 160-day period of section 103-5(b) if an accused makes a prompt demand for trial following his release.

Several decisions of the appellate court have considered the same question concerning the effect of a speedy-trial demand made by an accused while in custody. As the cases illustrate, different results have been reached under different circumstances, and a distinction has arisen between in-custody demands expressly made in contemplation of eventual release and in-custody demands, like the present one, not so made.

In People v. Byrn (1971), 3 Ill.App.3d 362, 274 N.E.2d 186, the defendant was arrested on May 27. At his arraignment on June 1, the defendant pleaded not guilty to the charge against him and made an oral demand for a speedy jury trial. In response, the judge repeated the defendant's plea and jury demand but did not refer to the speedy-trial request. Following further proceedings, the defendant made a motion for bail on August 5; the motion was allowed on August 10, and the necessary bail bond was filed August 11. On November 16, the defendant moved to dismiss the charges under the 160-day rule, and the trial judge later granted the motion. The appellate court reversed. The court did not consider the parties' arguments whether the defendant had made a valid demand because of the trial judge's failure to specifically note the demand or record it in the minutes of the arraignment proceedings. The court concluded that a demand made by an accused while in custody is "superfluous," noting that the 120-day rule...