People v. Jenkins

• Decision Date: 29 October 1968
• Docket Number: Gen. No. 51775
• Citation: People v. Jenkins, 243 N.E.2d 259, 101 Ill.App.2d 414 (Ill. App. 1968)
• Parties: PEOPLE of the State of Illinois, Appellant, v. M. L. JENKINS (Impleaded), Appellee.
• Court: Appellate Court of Illinois

Page 259

243 N.E.2d 259

101 Ill.App.2d 414

PEOPLE of the State of Illinois, Appellant, v. M. L. JENKINS (Impleaded), Appellee.

Gen. No. 51775.

Appellate Court of Illinois, First District, Second Division.

Oct. 29, 1968.

John J. Stamos, State's Atty., County of Cook, Chicago, Elmer C. Kissane, Joseph T. Garlovsky, Asst. State's Attys., of counsel, for appellant.

Gerald W. Getty, Public Defender, Chicago, for appellee.

LYONS, Justice.

This is an appeal by the People, in accordance with Illinois Supreme Court Rule 604(a) (Ill.Rev.Stat. (1967), ch. 110A, § 604(a)), from an order of the trial court granting the motion of the defendant for discharge pursuant to the speedy trial provisions of the Illinois Code of Criminal Procedure. See Ill.Rev.Stat. (1965), ch. 38, § 103--5(a) & (d). The common law record and transcript of proceedings indicate the following chronology of events.

JANUARY 25, 1966--defendant was arrested with another man for murder and was never admitted to bail.

FEBRUARY 21, 1966--defendant was indicted jointly with the other man for murder.

FEBRUARY 28, 1966--defendant was arraigned. He declared his indigency; the public defender was appointed to represent him; a plea of not guilty was entered; and the case was assigned by the chief judge to another judge for trial. On this same day, the trial judge granted the motion of the defendant for a list of witnesses to any statements made by the defendant, said list to be furnished the defendant by the State within 10 days. By order of court, the cause was continued to March 15, 1966, with subpoenas.

MARCH 15, 1966--by order of court, the cause was continued to March 31, 1966, without subpoenas.

MARCH 31, 1966--defendant Jenkins made this statement at the beginning of the hearing: 'I am ready for trial. I would appreciate it if you would appoint me another defender.' The trial judge, after granting the motion of the codefendant for a severance, appointed private counsel for the defendant Jenkins in place of the Public Defender, and, by order of court, the cause was continued to April 20, 1966, with subpoenas.

APRIL 20, 1966--the defendant appeared in court without counsel and the cause was continued, by order of court, to May 10, 1966, with subpoenas. On April 21, 1966, private counsel filed his written appearance for the defendant.

MAY 10, 1966--on motion of counsel for the defendant, the trial court ordered that the Behavior Clinic of the Circuit Court of Cook County conduct a psychiatric examination of the defendant and report to the court on or before May 31, 1966, regarding the defendant's competency and sanity. The cause was continued, by order of court, to May 31, 1966, with subpoenas.

MAY 31, 1966--report of the Behavior Clinic showing defendant to be competent was filed and the cause was continued, by order of court, to June 22, 1966, with subpoenas.

JUNE 20, 1966--court granted the motion of the defendant to advance the cause from June 22, 1966, to the present date and after a complete hearing, the court granted the motion of the defendant for discharge pursuant to the speedy trial (120 days) provisions of the Illinois Code of Criminal Procedure and entered its order to that effect thereby discharging the defendant from custody. The People appeal from this order.

It is settled law in Illinois that the State may appeal from an order discharging the defendant from custody due to the failure of the State to accord him a speedy trial in accordance with the 120 day standard found in Ill.Rev.Stat. (1965), ch. 38, § 103--5(a). The courts have stated that the granting of such an order of discharge is in substance and effect a dismissal of the indictment, an order from which the State may appeal. See People v. Petropoulos, 34 Ill.2d 179, 214 N.E.2d 765 (1966). The right of the State to appeal in such a case as the instant one has now been codified in Ill.Rev.Stat. (1967), ch. 110A, § 604(a).

The right of every accused to receive a speedy public trial is guaranteed by art. II, § 9 of the Illinois Constitution, S.H.A. and is given concreteness and specificity by our legislature in Ill.Rev.Stat. (1965), ch. 38, § 103--5(a) & (d), which provide as follows:

(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, by a competency hearing, or by an interlocutory appeal.

(d) Every person not tried in accordance with subsections (a), * * * of this Section shall be discharged from custody * * *.

It is undisputed in the instant case that the defendant was never admitted to bail and was not brought to trial within 120 days following his arrest. However, the State argues that the 'delay was occasioned by the defendant' in asking for 'another defender' on March 31, 1966, thereby 'tolling' the running of the statutory period and causing it to run anew again from the date to which the case was continued. We agree. The common law record indicates that on March 31, 1966, the cause was continued by order of court, but the transcript of proceedings shows that on March 31, 1966, the defendant asked the court to appoint 'another defender' which the court did not continued the case to April 30, 1966, with subpoenas.

It has been decided that a reviewing court may look at both the transcript of proceedings and the common law record so as to do complete justice to both the State and the defendant in passing upon motions for discharge based upon the speedy trial provisions of our criminal statutes. Our Supreme Court in People v. Tamborski, 415 Ill. 466, 473, 114 N.E.2d 649, 653 (1953), has said:

'* * * If a defendant in a motion for his discharge under such statute relies upon facts dehors the record, such facts must be preserved in the record; otherwise, the court will not recognize such facts as existing. People v. Lindner, 262 Ill. 223, 104 N.E. 329. By the same token, if the State has a defense dehors the record to such a motion, the State must present such facts and preserve them in the record, or the court cannot recognize such facts as existing.'

In the instant case the report of proceedings for June 20, 1966, shows us that the State did object to the release of the defendant and did so on the grounds that the defendant had caused a delay on March 31, 1966, by asking for 'another defender,' which request the court granted. The report of proceedings for March 31, 1966, shows without contradiction that the defendant, in fact, did make such a request. Furthermore, defense counsel ('another defender'), in support of his motion for discharge, marked as a defense exhibit the transcript of proceedings for the March 31, 1966 hearing. Therefore, this reviewing court is duty bound to examine both the common law record and the transcript of proceedings for March 31, 1966, to determine if the trial court erred in granting the motion of the defendant for discharge, in that the defendant himself had caused the delay on March 31, 1966, by asking the court for an attorney other than the previously appointed public defender.

Our Supreme Court has ruled that such a request by the defendant does 'toll' the constitutional right of the defendant to a speedy trial in criminal cases. It stated in People v. Stahl, 26 Ill.2d 403, 405, 186 N.E.2d 349, 350 (1962):

'Furthermore, we note there was a delay in trial occasioned by defendant which would prevent his discharge. Defendant was arrested and committed on August 9, 1959, and although he was not tried until February 1, 1960, the record shows that upon defendant's application the cause was continued from November 5 to November 12, 1959, to permit him to obtain other counsel. Where a defendant requests or agrees to a continuance, it is well established that the four-months period starts again from the date to which the case is continued, (People v. Hayes, 23 Ill.2d 527, 179 N.E.2d 660; People v. Niemoth, 409 Ill. 111, 98 N.E.2d 733,) and the trial here was within the limits of the new four-months period.'

The rule in the above cited case was followed by our court in People v. Prowse, 71 Ill.App.2d 465, 219 N.E.2d 1 (1966), wherein we held that the defendant caused the delay by objecting to the Public Defender and demanding an attorney from the Chicago Bar Association. Hence, in the instant case, it follows that the defendant occasioned the delay in his trial on March 31, 1966, by asking the court to appoint different counsel for him. By so doing the defendant effectively contradicted his earlier statement that he was ready for trial. The court granted his motion for different counsel and continued the cause to April 20, 1966. Therefore, the defendant, by his voluntary actions, tolled his right to a speedy trial within 120 days from his arrest and the new statutory period of 120 days began to run from April 20, 1966, the date to which the trial judge...