People v. Jones
| Decision Date | 18 July 1986 |
| Docket Number | Nos. 3-85-0552,3-85-0553,s. 3-85-0552 |
| Citation | 99 Ill.Dec. 595,495 N.E.2d 1330,145 Ill.App.3d 804 |
| Parties | , 99 Ill.Dec. 595 PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Charles JONES, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
Joan Scott, State's Atty., Lewistown, John X. Breslin and Gary F. Gnidovec, State's Attys. Appellate Service Com'n, Ottawa, for plaintiff-appellant.
Peter A. Carusona and Robert J. Agostinelli, Office of State Appellate Defender, Ottawa, for defendant-appellee.
Defendant, Charles Jones, was charged in two counts with having committed unlawful deliveries of a controlled substance (LSD). A warrant for his arrest was issued pursuant to section 111-2(d) of the Criminal Code of 1963 (Ill.Rev.Stat.1983, ch. 38, par. 111-2(d)), and on April 16, 1985, defendant appeared in the circuit court of Fulton County in the custody of the sheriff. The charges were read to defendant. He was found to be indigent and was remanded to the sheriff's custody upon failure to post bond which previously had been set at $5,000. The public defender was appointed to represent defendant.
The case proceeded to a preliminary hearing on April 24, 1985. The court found probable cause to believe that defendant had committed an offense, defendant was arraigned and entered a plea of not guilty. Upon denial of defendant's motion for release on his own recognizance, he was again remanded to the custody of the sheriff. On April 26, 1985, defendant filed a request for an immediate jury trial. By an order entered May 29, 1985, defendant's cases were assigned to Judge Wilhelm for a jury trial to commence on June 18, 1985. A pretrial conference was set by the same order for June 10, 1985.
On that date, neither defendant nor the public defender, John Clark, appeared. Assistant State's Attorney, Dean Wilson, informed the court that Clark had told him that defendant would be pleading guilty to the offenses. Accordingly, by order entered on June 17, 1985, defendant's cases were set for re-arraignment to be held before Judge Wilhelm on July 3, 1985.
On July 3, 1985, Assistant State's Attorney Dwight Campbell and Public Defender John Clark appeared in court and informed Judge Wilhelm that he might wish to disassociate himself from the defendant's cases because the judge's son, Tom, might be a material witness. Judge Wilhelm immediately recused himself and referred the matter to the office of the chief judge of the circuit in Macomb, in McDonough County. On July 23, 1985, Campbell received notice that defendant's cases had been reassigned to Judge Murphy, who was in Macomb at that time. Between July 23 and August 15, Campbell made several unsuccessful attempts to have Judge Murphy set defendant's cases for re-arraignment.
Finally, on August 16, defendant, along with Public Defender Clark and Assistant State's Attorney Campbell, appeared before Judge Murphy at the Fulton County courthouse on the State's motion for re-arraignment. Defense counsel moved for dismissal of the charges against defendant for violation of his right to a speedy trial. The State's attorney filed a "Motion for Change of Judge." The matter was taken under advisement. On August 20, Attorney Edward Danner entered his appearance for defendant.
On August 21, Public Defender Clark withdrew as counsel for defendant. The State's motion for change of judge was granted. Defendant's motion to dismiss was heard by Judge Kenneth Bath later that day, and at the conclusion of testimony and arguments of counsel the court took the matter under advisement.
On August 22, Judge Bath granted defendant's motion to dismiss and discharged him. The court's findings of fact and law follow:
The State takes this appeal pursuant to Supreme Court Rule 604(a)(1) (87 Ill.2d R. 604(a)(1). Factually, the State takes issue with the trial court's finding that defendant did not occasion any delay. The State further contends that the trial judge erred by not exercising its discretion in determining whether defendant was entitled to dismissal of the charges upon its finding that 122 days had elapsed between the date defendant was first incarcerated and the filing of his motion to dismiss.
Defendant argues that we should not reverse the trial court's order because the trial court did not abuse its discretion in finding no delay attributable to him and, further, that the speedy trial statute (Ill.Rev.Stat.1985, ch. 38, par. 103-5) is mandatory, not discretionary.
As defendant correctly states, the State's second issue--essentially one of statutory construction--is not well-taken. The precise argument advanced here was presented in People v. Williams (5th Dist.1985), 137 Ill.App.3d 816, 92 Ill.Dec. 59, 61, 484 N.E.2d 790, 792, and rejected on grounds of the supreme court's "clear pronouncement" in People v. Richards (1980), 81 Ill.2d 454, 459, 43 Ill.Dec. 700, 703, 410 N.E.2d 833, 836. In Richards the court declared unequivocally that "though the statutory period is not co-extensive with [the constitutional] right [to a speedy trial] (People v. Arndt (1972), 50 Ill.2d 390, 280 N.E.2d 230; People v. Love (1968), 39 Ill.2d 436, 235 N.E.2d 819), if an accused is not brought to trial within the 120-day term and he has not occasioned any delay in trial, he is entitled to a dismissal of the charges [citations omitted]." We find the court's reasoning in Williams, based on Richards, more persuasive than the State's statutory construction argument presented here.
Nonetheless, we find that the trial court did abuse its discretion in finding that the defendant did not occasion any delay. On review of a speedy trial issue, this court may not close its eyes to the attendant facts and circumstances but must scrutinize them to the end that justice be not mocked either by allowing the State to evade defendant's speedy trial rights on overly technical grounds or by dismissing charges against a defendant who in fact has caused a delay. People v. Davis (1st Dist.1983), 114 Ill.App.3d 537, 70 Ill.Dec. 363, 449 N.E.2d 237.
The record before us clearly discloses that by June 10 defendant had decided to accept the plea agreement tendered to him as outlined in a letter dated June 3, 1985, from Assistant State's Attorney Campbell to Public Defender John Clark. The letter recited, in pertinent part:
A handwritten modification immediately followed: "John: Restitution would be 1/2 of $535.00." A week later, June 10, 1985, was the date set for defendant's pre-trial conference. The record discloses that around June 6 or 7 Clark talked with Assistant State's Attorney Dean Wilson and explained that he would be out of town on June 10, and that defendant was going to accept the plea agreement and plead guilty to the charges against him. The practical consequence of defendant's decision was that he had to be re-arraigned in open court to enter his plea of guilty. Thus, rather than going to trial as scheduled on June 18, a court date had to be set for accepting the plea pursuant to section 113-4(c) (Ill.Rev.Stat.1985, ch. 38, par. 113-4(c)). Since neither defendant nor his attorney appeared before the court on June 10, it was readily apparent that defendant did not intend or anticipate that his plea be accepted on ...
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