People v. Poteat
| Decision Date | 21 June 1973 |
| Docket Number | No. 55955,55955 |
| Citation | 12 Ill.App.3d 1068,299 N.E.2d 565 |
| Parties | PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Gordon POTEAT, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
David Lincoln Ader, Chicago, for defendant-appellee.
Edward V. Hanrahan, State's Atty., Elmer C. Kissane, James S. Veldman, Asst. State's Attys., Chicago, for plaintiff-appellant.
This is an appeal by the State from an order of the Circuit Court discharging the defendant, Gordon Poteat, because he was not tried within 120 days of his arrest. The State contends that the defendant's motion for discharge was erroneously granted since he was responsible for a delay which tolled the running of the statute. Ill.Rev.Stat., 1969, ch. 38, para. 103--5(a).
Poteat, charged with aggravated battery and attempt murder, was taken into custody on September 6, 1970, and appeared in court on September 8th. The victim of his alleged attack was in a hospital and a continuance was requested by the State. The defendant's bond was set and he was informed that the case would be continued to September 30th. The court told him that on September 30th he could have the services of the public defender if he was unable to afford his own lawyer.
On September 30th he was not represented by counsel and the hearing was postponed on motion of the defendant until October 15th. Poteat was subsequently indicted. He did not obtain his release on bail and on January 29, 1971, he filed a motion for discharge which alleged that he had been incarcerated for more than 120 days and, without fault on his part, had not been brought to trial. The motion was granted.
At issue is whether the continuance of September 30, 1970, was properly attributed to the defendant. The complaining witness was in court on that date and the State, ostensibly, was ready to proceed with the preliminary hearing. The following colloquy took place:
'The Clerk: Gordon Poteat.
The Court: Are you Gordon Poteat?
The Defendant: Yes sir.
The Court: You are charged with attempted murder, using a butcher knife at one said Bernice Stevens . . . Is Bernice Stevens here?
The Complainant: Yes.
The Court: Are you ready for trial?
The Defendant: No.
The Court: When do you suppose you will be ready for trial?
The Defendant: I don't know.
The Court: You were arrested September 7th and you still want a continuance?
The Defendant: Yes.
The Court: Why?
The Defendant: To get a lawyer.
The Court: Motion defendant. October 15th.'
Poteat testified in support of his motion for discharge that on September 30th he was confused by the court's question, 'Are you ready for trial?' He said he recently had come to Illinois from Georgia and had no prior involvement in criminal proceedings; he did not know if by the word 'trial' the judge meant that a determination of his guilt or innocence would be made; if the judge had explained the nature of a preliminary hearding and that the public defender was available to him, he would have known what was going on, would have accepted legal assistance and would not have asked for a continuance.
The defendant was 20 years old, was a high school graduate and had attended a vocational school. He had been told on September 8th that if he had no lawyer of his own on September 30th he could have the services of the public defender. Moreover, it was brought out at the hearing on the motion to discharge that between his first court appearance on September 8th and his second on September 30th, he wrote his mother and she telephoned a cousin of his in Chicago. The cousin visited him in jail and at one of these visits, which occurred three days before September 30th, told him they were going to get him a lawyer. Poteat was asked what the cousin said and he replied:
His family did engage an attorney and this attorney appeared for him at the preliminary hearing which was held at the next court date, October 15th. The same attorney filed the motion for discharge, represented him at that hearing and represents him in this appeal.
Ill.Rev.Stat., 1969, ch. 38, para. 103--5(a) provides:
'(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, . . .'
'(d) Every person not tried in accordance with subsections (a), . . . of this Section shall be discharged from custody. . . .'
In resolving the issue of whether the delay was occasioned by the defendant the criterion in each case is whether the defendant's acts caused or contributed to the delay. People v. Fosdick (1967), 36 Ill.2d 524, 224 N.E.2d 242; People v. Walker (1968), 100 Ill.App.2d 282, 241 N.E.2d 594.
To sustain the order of the trial court Poteat principally relies on the cases of People v. House (1957), 10 Ill.2d 556, 141...
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People v. Boyce
...even if the accused did not seek a continuance. (People v. Leonard (1974), 18 Ill.App.3d 527, 310 N.E.2d 15; People v. Poteat (1973), 12 Ill.App.3d 1068, 299 N.E.2d 565.) We think the logic of this rule extends even to situations where, as here, a continuance is formally granted on the Stat......
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People v. Evans
...contributes to the delay, and this question can only be answered by carefully examining the facts of each case. (People v. Poteat (1973), 12 Ill.App.3d 1068, 299 N.E.2d 565.) Accountability for the delay rests in the judgment of the trial court and its decision will not be disturbed unless ......