People v. Leonard

• Decision Date: 10 April 1974
• Docket Number: No. 11913,11913
• Citation: 310 N.E.2d 15,18 Ill.App.3d 527
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. William LEONARD, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 15

310 N.E.2d 15

18 Ill.App.3d 527

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. William LEONARD, Defendant-Appellant.

No. 11913.

Appellate Court of Illinois, Fourth District.

April 10, 1974.

Michael J. Costello, Springfield, for defendant-appellant.

C. Joseph Cavanagh, State's Atty., Sangamon County, Springfield, for plaintiff-appellee; Hugh H. Rowden, Asst. State's Atty., of counsel.

SIMKINS, Justice.

The defendant appeals from his conviction of theft under Section 16--1(b) of the Criminal Code in that by deception he obtained control over property of value in excess of $150. (Ill.Rev.Stat.1971, ch. 38, 16--1(b).) The defendant was found guilty by a jury trial and following a hearing in aggravation and mitigation was sentenced to two to ten years in the penitentiary.

The initial issue is the defendant's contention that his conviction must be set aside because the State failed to try him within 120 days as required by Section 103--5(a) of the Criminal Code. (Ill.Rev.Stat.1971, ch. 38, 103--5(a).) The defendant was indicted on December 22, 1970, and charged with having committed this offense on December 2, 1970. Trial was set for March 22, 1971, at which time the defendant failed to appear, resulting in a forfeiture of bond and the issuance of an arrest warrant. The defendant was arrested on October 28, 1971 and held in custody continuously until trial on February 28, 1972, a period in excess of 120 days. The defendant first appeared before the court on November 1, 1971, and the trial was then reset for December 6, 1971. On November 30, 1971, the defendant appeared in open court stating that he had no attorney and the court appointed counsel. On December 6, 1971, the appointed counsel asked for a continuance on the grounds that he had just been appointed. The docket entry indicates that the defendant agreed and the cause was continued to January 10, 1972. On January 3, 1972, defense counsel's motion for a continuance to February 28, 1972 was granted.

The controlling question in determining whether a defendant is entitled to a discharge under the 120-day statute is whether the delay of the trial beyond 120 days was 'occasioned by the defendant', and, if so, he is not entitled to discharge under the statute. (People v. Nunnery, 54 Ill.2d 372, 297 N.E.2d 129.) The supreme court noted that the criteria in each case is whether the defendant's acts in fact caused or contributed to the delay. Where the defendant specifically requests or agrees to a continuance, the statutory 120-day period is tolled, and the period begins to run anew. (People v. Dawson, 3 Ill.App.3d 668, 279 N.E.2d 483.) The same result occurs if the defendant causes a delay in the proceedings, even if he did not expressly seek a continuance. (People v. Caruth, 4 Ill.App.3d 527, 281 N.E.2d 349.) The defendant contends that he cannot be held responsible for the delay from November 1 to November 30, 1971--if it may even be considered a delay--because he was only exercising his right to secure counsel. In a similar vein, it is urged that the defendant cannot be said to have caused the continuance granted on December 6 to allow the newly appointed counsel time for preparation because to do so would infringe on his right to able representation and, in any event, that delay resulted from the court's failure to appoint counsel earlier. As to the final continuance granted on January 3, 1972, defendant argues that the record does not show he agreed to that continuance and he should not be held liable for delays occasioned by appointed counsel. In a case involving the waiver of a jury trial by an attorney for his client, the supreme court has said that the relationship of an attorney to the client is one of agency, and the general rules of law applicable to agency apply. (People v. Novotny, 41 Ill.2d 401, 244 N.E.2d 182.) The supreme court noted that an accused ordinarily speaks and acts through counsel. In People v. Sailor, 43 Ill.2d 256, 253 N.E.2d 397, the court reaffirmed the rule enunciated in Novotny. Since the time between defendant's arrest on October 28, 1971, and the trial on February 28, 1972, only slightly exceeded 120 days, if the defendant was responsible for any of the several delays, he would not be entitled to discharge under the statute. Both continuances of the trial were at the request of defense counsel, and no delay from the original trial date of December 6 was at the instance of the prosecution or the court, so clearly defendant is not entitled to a discharge on the grounds that the State failed to give him a speedy trial.

The defendant also urges that he was not proved guilty beyond a reasonable doubt. It is uncontroverted that the defendant received a $300 check from the complaining witness James for which defendant promised to deliver a color television set. Likewise, it is uncontested that the defendant cashed the check and did not deliver a television set, nor return the money to the Jameses.

The defendant testified that he was a self-employed seller of small appliances and televisions; that he made no misrepresentation to the Jameses; that he accepted the check from the Jameses with the payee space left blank, being uncertain whether he would obtain the television in St. Louis or Peoria. Defendant said he told the Jameses it would take a week to ten days to obtain the set; that he went to an auction house in Springfield where he could purchase television sets wholesale; and that he was on his way to deliver the television set when he was arrested, but that the police failed to see the set in the back of his car. In contradiction to this, the Jameses testified that the defendant...