People v. Hatch

• Decision Date: 24 November 1982
• Docket Number: No. 81-400,81-400
• Citation: 110 Ill.App.3d 531,442 N.E.2d 655,66 Ill.Dec. 229
• Parties: , 66 Ill.Dec. 229 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Gary HATCH, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 655

442 N.E.2d 655

110 Ill.App.3d 531, 66 Ill.Dec. 229

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Gary HATCH, Defendant-Appellant.

No. 81-400.

Appellate Court of Illinois Second District.

Nov. 24, 1982.

G. Joseph Weller, Josette Skelnik, Asst. State Appellate Defenders, Elgin, for defendant-appellant.

J. Michael Fitzsimmons, State's Atty., Wheaton, Phyllis J. Perko, State Atty. Appellate Service Commission, Elgin, for plaintiff-appellee.

REINHARD, Justice:

After a bench trial upon stipulated evidence, defendant, Gary Hatch, was convicted of burglary (Ill.Rev.Stat.1979, ch. 38, par. 19-1) and received an extended term sentence of 10 years imprisonment. On appeal, defendant contends that he was denied his statutory right to a speedy trial either because he was not tried within 120 days of being taken into custody by DuPage County authorities or because he was not tried within 160 days from the date of his demand for speedy trial filed at a time when he was on bond.

Defendant was arrested in DuPage County for burglary on September 27, 1980, and was released on bond that same day. On October 9, 1980, defendant's privately retained counsel filed an appearance and a written speedy trial demand on behalf of the defendant. On that date probable cause was found at the preliminary hearing and his arraignment was set for November 7, 1980. Defendant failed to appear for his November 7, 1980, arraignment, and the court ordered that defendant's bond be forfeited and issued a warrant for defendant's arrest. Thereafter, defendant was arrested in Kane County and was charged by the Kane County State's Attorney for an unrelated felony offense alleged to have occurred in Kane County on September 10, 1980. Defendant appeared in the DuPage County circuit court on December 12, 1980, pursuant to a writ (presumably a writ of habeas corpus ad prosequendum although the writ is not in the record) while still in the custody of the Kane County authorities. At that time, defendant was arraigned on the DuPage County burglary charge, the public defender was appointed to serve as counsel for defendant, and a discovery schedule and a trial date of February 24, 1981, were set. Defendant was then returned to Kane County where he was held until January 22, 1981, when proceedings there terminated upon his conviction of theft under $150 and his sentence of 70 days in the Kane County jail with credit for time served.

Defendant was brought before the circuit court of DuPage County on January 23, 1981, at which time his bond was revoked. The defendant was actually returned to DuPage County on January 22, 1981. On January 23, 1981, the Illinois Department of Corrections (DOC) filed a parole violation warrant with DuPage County officials. Defendant was apparently released on that date to the DOC in whose custody he remained until February 27, 1981, when he next appeared in the DuPage County circuit court. On February 27, 1981, his trial was continued to April 7, 1981, and later again continued until April 20, 1981, both on the court's motion. On April 16, 1981, defendant filed four motions for discharge, based on the alleged violation of defendant's statutory right to a speedy trial. The trial court denied defendant's motions and identified January 23, 1981, as the date on which the 120-day speedy trial term began to run. Defendant was thereupon tried by the court upon stipulated evidence, found guilty, and subsequently sentenced to an extended term of 10 years to run consecutive to "any sentence that he has been given prior to this date or is serving prior to this date."

Defendant contends that he was in custody in DuPage County for purposes of the 120-day statutory speedy trial term (Ill.Rev.Stat.1979, ch. 38, par. 103-5(a)) from the date of his arraignment on December 12, 1980, for the DuPage County burglary charge. He argues that even though his case was not terminated in Kane County until January 22, 1981, there was no obstacle to DuPage County's prosecution once he had been brought back for arraignment in DuPage County and a trial date had been set. The State's position is that the 120-day statutory speedy trial term commenced in DuPage County on January 22, 1981, the date on which the Kane County proceedings were terminated by defendant's plea of guilty and sentencing, and on which defendant was returned to DuPage County.

Section 103-5(a) of the Code of Criminal Procedure of 1963 (Ill.Rev.Stat.1979, ch. 38, par. 103-5(a)) provides, in pertinent part, that "[e]very 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 * * *." Defendant maintains that the crucial issue is whether any actual obstacle to his prosecution exists in a particular county, citing our decision in People v. Hollowell (1979), 78 Ill.App.3d 515, 33 Ill.Dec. 912, 397 N.E.2d 245, which cites our opinion in People v. Kerley (1979), 72 Ill.App.3d 916, 29 Ill.Dec. 66, 391 N.E.2d 225. He contends that on December 12, 1980, he was before the DuPage County circuit court and no obstacle prevented his prosecution there despite the fact that his prosecution had not terminated in Kane County.

This argument misses the mark in interpreting our holdings in Kerley and Hollowell as well as being at odds with other appellate decisions which have addressed the issue of when a defendant is in custody for purposes of the commencing of the 120-day speedy trial term under circumstances where a defendant simultaneously faces charges pending from two counties. It is clear in Kerley that the defendant therein commenced being in custody on the DuPage County detainer warrant upon the termination of the Cook County proceedings by the entry of the judgment of conviction and sentence. (72 Ill.App.3d 916, 919, 29 Ill.Dec. 66, 391 N.E.2d 225.) It is in the context of the termination of the Cook County proceedings that we observed that no obstacle existed to trying the defendant in DuPage County and he could be considered in custody in DuPage County. Hollowell does not support any broader application of what we said in Kerley. We recently restated this position in People v. Wentlent (1982), 109 Ill.App.3d 291, 297, 64 Ill.Dec. 744, 440 N.E.2d 296, therein citing additional appellate court decisions following this same reasoning, as follows:

"Where, however, defendant is in custody awaiting trial in one county and charges are pending against him in another county, then a different rule applies. In that situation, the 120-day period does not begin to run until the proceedings in the first county end and defendant is held in custody by or for the second county on the subject charges. (People v. Evans (1979), 75 Ill.App.3d 949 , 394 N.E.2d 710; People v. Kerley (1979), 72 Ill.App.3d 916 , 391 N.E.2d 225; People v. Karr (1979), 68 Ill.App.3d 1040 , 386 N.E.2d 927; People v. Clark (1968), 104 Ill.App.2d 12, 244 N.E.2d 842.)"

Defendant seeks to escape application of this principle by the fact that he was brought by writ before the circuit court in DuPage County, arraigned, and had his trial date set. Notwithstanding the fact that he was thereafter returned to Kane County for continuation of the proceedings there, he maintains there was no obstacle to DuPage County's prosecution of him. In a closely similar factual situation to the case at bar, the appellate court in People v. Gardner (1982), 105 Ill.App.3d 103, 60 Ill.Dec. 951, 433 N.E.2d 1318, held that the 120-day term began to run on the date of the termination of the proceedings in Jackson County despite the fact that the defendant therein had been delivered to Williamson County pursuant to a writ of habeas corpus ad prosequendum, appeared before the court, and then returned to Jackson County for the conclusion of its prosecution. (105 Ill.App.3d 103, 109-112, 60 Ill.Dec. 951, 433 N.E.2d 1318.) We approve of the holding in Gardner and find it is applicable to the facts here.

Defendant, herein, as in Gardner, was in custody and under prosecution in one county, was brought to a second county by writ prior to the termination of proceedings in the first county, appeared before the court in the second county, and returned thereafter to the first county until the proceedings there were terminated. Defendant attempts to distinguish Gardner by pointing out that he was initially arrested in DuPage County on September 27, 1980, before Kane County acquired custody of him, whereas in Gardner the defendant was not initially arrested in Williamson County. He maintains that under these circumstances he comes within the rule prescribed in People v. Fosdick (1967), 36 Ill.2d 524, 224 N.E.2d 242.

In Fosdick, the defendant was first charged with a Champaign County crime, then was arrested in DeWitt County on other charges. He later escaped from DeWitt County, and was eventually apprehended in Champaign County by F.B.I. agents acting under the authority of a Federal fugitive from justice warrant obtained by DeWitt County. While in the Champaign County jail, the defendant was arrested on the Champaign County warrant, taken before a magistrate and served with a copy of the original Champaign County complaint. On the next day, the complaint was dismissed and another complaint was filed alleging the same charge based upon the same conduct. Another warrant was issued but not served upon the defendant who was then returned to DeWitt County and tried and convicted of other charges. The supreme court held that the defendant was "in custody" of Champaign County from the date of the service of the Champaign County arrest warrant. The 120-day period did not begin on a later date when DeWitt County, having finished with the defendant, turned him back over to Champaign County in order to allow the latter county to proceed against him. The court reasoned that such a voluntary dismissal of the charge by Champaign County without notice to the...