People v. Montenegro, No. 2-89-0077

• Court: United States Appellate Court of Illinois
• Writing for the Court: INGLIS
• Citation: 203 Ill.App.3d 314,560 N.E.2d 934
• Decision Date: 31 August 1990
• Docket Number: No. 2-89-0077
• Parties: , 148 Ill.Dec. 337 The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Nicolas MONTENEGRO, Defendant-Appellee.

Page 934

560 N.E.2d 934 203 Ill.App.3d 314, 148 Ill.Dec. 337 The PEOPLE of the State of Illinois, Plaintiff-Appellant,
v.
Nicolas MONTENEGRO, Defendant-Appellee. No. 2-89-0077. Appellate Court of Illinois,
Second District. Aug. 31, 1990.
Rehearing Denied Oct. 31, 1990.

Page 935

[203 Ill.App.3d 315] [148 Ill.Dec. 338] Gary V. Johnson, Kane County State's Atty., Geneva, William L. Browers, Deputy Director, and Colleen M. Griffin, State's Attys. Appellate Prosecutor, Elgin, for the People.

G. Joseph Weller, Deputy Defender, Paul J. Glaser, Office of State Appellate Defender, and Judith M. Brawka, Geneva, for Nicholas Montenegro.

Justice INGLIS delivered the opinion of the court:

Defendant, Nicolas Montenegro, was arrested on July 13, 1988, and indicted with three other men on July 19, 1988, for unlawful delivery of a controlled substance (cocaine) (Ill.Rev.Stat.1987, ch. 56 1/2, par. 1401(a)(2)). He was discharged when the trial court determined that the 120-day period specified for his right to a speedy trial under section 103-5(a) of the Code of Criminal Procedure of 1963 (Code) (Ill.Rev.Stat.1987, ch. 38, par. 103-5(a)) had expired by November 14, 1988. On appeal, the State contends that the trial court erred in finding that the 120-day period expired when defendant occasioned delay by requesting supplemental discovery. We reverse and remand.

On August 1, 1988, defense counsel was appointed; she filed a motion for discovery, and the matter was continued until August 22, 1988, for compliance with discovery. The State filed its answer to discovery on August 1, 1988. On August 22, 1988, defendant filed a motion for supplemental discovery, and his counsel stated:

"I don't know how long it would take for the State to obtain these additional materials which are requested, but I would imagine that it would take some time. The lab analysis obviously will take the longest, but the other reports, I think, would probably be able to be tendered within a couple of weeks."

The court set September 6, 1988, for a status hearing on discovery. On September 6, the State requested another week to comply with [203 Ill.App.3d 316] the discovery request but agreed with defendant that a trial date could be set. The court set September 21, 1988, for a pretrial conference and stated that it would set a trial date at that time. The State filed its answer to the discovery request on September 21, 1988. On September 27, 1988, the trial was set for November 14, 1988, with a final pretrial conference set for November 10, 1988.

After the cause had been set for trial, it was transferred to a different judge. On January 3, 1989, defendant filed a motion

Page 936

[148 Ill.Dec. 339] for discharge, which he supported with the transcripts of the previous hearings before the first judge. The trial court read the transcripts and heard the arguments of counsel. The court determined that the August 22 motion was not a request to extend the discovery but instead was merely a request for supplemental discovery and, since the period up to September 6 was unreasonable, it did not cause a delay of trial. The court ruled that the motion did not occasion a delay that could be attributable to defendant. Therefore, since more than 120 days had elapsed between defendant's arrest on July 13, 1988, and November 14, 1988, the trial court ordered defendant discharged.

Section 103-5(a) of the Code (Ill.Rev.Stat.1987, ch. 38, par. 103-5(a)) gives effect to every defendant's right to a speedy trial. The State has the burden of bringing a defendant to trial within 120 days following the date he was taken into custody, but this period may be suspended temporarily for a number of reasons, including delay occasioned by the defendant. The relevant inquiry is whether a defendant's act in fact caused or contributed to the delay. (People v. Turner (1989), 128 Ill.2d 540, 550, 132 Ill.Dec. 390, 539 N.E.2d 1196; People v. Paulsgrove (1989), 178 Ill.App.3d 1073, 1076, 128 Ill.Dec. 111, 534 N.E.2d 131.) The defendant bears the burden of establishing facts which show a violation of the speedy trial statute. (Turner, 128 Ill.2d at 550, 132 Ill.Dec. 390, 539 N.E.2d 1196.) The decision of the trial court as to accountability for delay in bringing a defendant to trial should not be overturned unless there was a clear abuse of discretion. 128 Ill.2d at 551, 132 Ill.Dec. 390, 539 N.E.2d 1196.

We note at this point that a single day's delay occasioned by defendant was sufficient to result in the November 14, 1988, trial date being within the 120-day period....