People v. Kelley

• Decision Date: 13 February 1969
• Docket Number: Gen. No. 10975
• Citation: 105 Ill.App.2d 481,244 N.E.2d 818
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Bill Pat KELLEY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 818

244 N.E.2d 818

105 Ill.App.2d 481

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Bill Pat KELLEY, Defendant-Appellant.

Gen. No. 10975.

Appellate Court of Illinois, Fourth District.

Feb. 13, 1969.

Lewis M. Grigsby, Pittsfield, for defendant-appellant.

Cecil Burrows, State's Atty., Pittsfield, for plaintiff-appellee.

TRAPP, Presiding Justice.

Defendant appeals from a judgment of conviction following a jury trial upon his indictment for burglary. He was sentenced to the custody of the Attorney General of the United States for a term of not less than ten nor more than twenty years to run concurrently with a sentence of ten years imposed by the United States District Court for Colorado. Ch. 38, § 119--2(e), Ill.Rev.Stat.1965.

Upon this appeal it is urged that defendant was denied his constitutional right to a speedy trial.

Defendant was indicted on July 20, 1964, and arraigned on August 11th. The record does not show expressly the giving of bond, but does indicate that he was not incarcerated. On September 4th, trial date was set for October 13th. On this date defendant appeared and advised that his counsel had withdrawn. At his request the case was continued until October 26th. On October 16th, defendant advised the court that he had obtained counsel, but on the trial date, October 26th, neither the defendant nor his counsel appeared. Bond was forfeited, and a bench warrant issued.

The defendant testified that he was restrained in a Denver jail from May, 1965, until January, 1966, whereupon he was imprisoned in the Federal penitentiary at Leavenworth. The State's Attorney agrees that a detainer was placed on defendant on April 15, 1966, at Leavenworth. By letter dated August 26, 1966, addressed to the 'District Court Clerk', defendant stated that he was ready for trial, '* * * and available through writ of Habeas corpus ad prosequendum'.

On September 19, 1966, such writ was ordered to issue to return defendant for trial on October 19th. On September 28th, the writ was vacated, and a writ was ordered for defendant's return on October 25th, for trial. On the latter date, defendant appeared in court, he requested appointment of counsel, and the continuance of the case. On November 7, 1966, counsel for defendant was appointed. At the latter's request for a continuance to prepare for trial, the case was set for November 28th.

It is defendant's argument that the constitutional right to a speedy trial should be measured in time from the placing of the 'detainer' on April 15, 1966. This record shows no motion or application for discharge for failure to provide a speedy trial prior to trial or conviction. The right to speedy trial as a constitutional right is personal to the accused and is deemed waiver unless application for discharge is made prior to conviction. The People v. Kuczynski, 33 Ill.2d 412, 211 N.E.2d 687; The People v. Stahl, 26 Ill.2d 403, 186 N.E.2d 349.

Again, the provisions of Ch. 38, § 103--5, Ill.Rev.Stat.1965, which provide for trial within 120 days from the date the defendant is taken into custody, is not the precise equivalent of the constitutional right to a speedy trial. The People v. Stuckey, 34 Ill.2d 521, 216 N.E.2d 785. Such statute requiring trial within 120 days is applicable to persons imprisoned in Illinois. People v. Terlikowski, 83 Ill.App.2d 307, 227 N.E.2d 521 (Third Dist. 1967). The defendant, who had been released on bond, was returned for trial within 60 days of his letter demanding trial. The writ of Habeas corpus for defendant's return was issued 146 days after the detainer was filed and he was returned for trial within 182 days following such detainer. He then asked for a continuance to prepare for trial.

In The People v. Moriarity, 33 Ill.2d 606, 213 N.E.2d 516, it was held that a delay of ten months in bringing the defendant to trial after he was located in another state was not so oppressive as to amount to a denial of speedy trial. In Terlikowski, a delay of seven months was found not to be a constitutional denial of speedy trial.

The case is readily distinguished from The People v. Bryarly, 23 Ill.2d 313, 178 N.E.2d 326, where eight years intervened between the indictment and trial, and four and a half years intervened between placing the 'detainer' in another state and the return of that defendant for trial in Illinois.

The record shows no evasion of prosecution by the State as in The People v. Fosdick, 36 Ill.2d 524, 224 N.E.2d 242, or The People v. Patheal, 27 Ill.2d 269, 189 N.E.2d 309, and no refusal to prosecute as in The People v. Swartz, 21 Ill.2d 277, 171 N.E.2d 784. The record shows that the case was set for trial on April 19, 1965, and on February 14, 1966, with notice to the surety on defendant's bond.

An essential fact is that defendant was provided with a prompt trial setting following his arraignment. So far as the record shows his failure to appear was voluntary. The delay between the placing of the 'detainer' and the return of defendant for trial is not so oppressive or arbitrary as to constitute denial of his right to a speedy trial.

...