People v. Richards

• Decision Date: 08 May 1975
• Docket Number: No. 74--103,74--103
• Citation: 328 N.E.2d 692,28 Ill.App.3d 505
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Charlotte RICHARDS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 692

328 N.E.2d 692

28 Ill.App.3d 505

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Charlotte RICHARDS, Defendant-Appellant.

No. 74--103.

Appellate Court of Illinois, Fifth District.

May 8, 1975.

Stephen P. Hurley, Deputy Defender, Mt. Vernon, Marilyn Kueper, Washington University School of Law, Research Asst., for defendant-appellant.

Donald E. Irvin, State's Atty., Jefferson County, Mt. Vernon, for plaintiff-appellee.

KARNS, Justice:

Defendant-appellant, Charlotte Richards, was convicted of armed robbery after a jury trial in Jefferson County and sentenced to serve from four years to four years and a day. On appeal, she alleges that the court erred in denying her petition for discharge under the 120 day rule (Ill.Rev.Stat.1973, ch. 38, par. 103--5) and that the jury was improperly instructed on the elements of the offense.

Defendant was incarcerated on May 9, 1973. A preliminary hearing was held on May 21 after which she was bound over to the grand jury. An indictment was returned June 27 and defendant was arraigned July 16, at which time she was presented with a copy of the indictment for the first time; she pleaded not guilty. On July 18, the State filed a motion to set the cause for trial. Defendant filed a motion to dismiss the indictment on July 27 and asked that an evidentiary hearing be held on the allegation that the grand jury proceedings were improperly conducted. On August 6, the State again asked that a trial date be set. The court set the cause for trial on August 27. On August 17, the State filed objections to defendant's motion to dismiss. On August 27, the cause was called for trial and both parties answered ready. Prospective jurors were present. The court noted that the motion to dismiss was still pending. Evidence on defendant's allegation was heard; the jury was dismissed; and the matter was taken under advisement by the court. On August 29, the State filed a third demand for trial. On August 30, defendant's motion to dismiss was denied. The cause was set for trial September 24. On September 6, the State filed a motion for disclosure of alibi defense, a motion for the disposition of all pre-trial motions, and a disclosure to defendant of possible evidence in its possession. On September 7, the one hundred twenty-first day, defendant filed a petition for discharge. A hearing was set for September 12 on the petition for discharge and on September 11, the State filed objections. The record reflects no disposition of the motion. On September 24, the one hundred thirty-eighth day, the trial commenced.

The State's evidence showed that on the evening of May 3, 1973, defendant entered the home of Mr. and Mrs. James Stevens on the pretext of using the telephone. Once inside, she displayed a sawed-off weapon of some kind, ordered Mr. Stevens to cut the telephone wires and robbed him of $4.00. Both victims identified the defendant in open court. Mrs. Stevens testified that he was certain that the weapon involved was a sawed-off double-barrel shotgun. He stated that he had experience with weapons in the service and had no doubt of the type of weapon used. Mrs. Stevens said that she thought the weapon was a shotgun but admitted that she had no experience with guns. During defense cross-examination of Jefferson County Sheriff Bill Hill, Hill admitted that during his investigation of the incident, he had been given a gun, a .22 caliber sawed-off rifle. The State had disclosed their possession of the weapon to the defendant on September 6, 1973. Over strenuous objection by the State, Hill was directed by the court to produce the weapon. Hill testified that he had received the weapon from one Gary Corder and that the weapon was in the same condition as when taken from Corder.

Gary Corder was the first witness for the defense. He identified the gun as one taken from his house by Darryl Allen. At the time the gun was taken, the bolt mechanism was missing and the trigger inoperable. The gun could not be fired. Corder stated that the weapon in the court room was in the same condition as it had been when Allen removed it from his house. The next defense witness was Charlotte Richards, the defendant. She stated that Defendant's Exhibit 1 was the weapon she had received from Darryl Allen and had used in the commission of the robbery and that it was in the same condition as it had been then. She admitted all the acts charged by the State.

The jury was instructed that the type of weapon used is a non-material allegation which the State need not prove.

Defendant first contends that she should have been discharged for the State's failure to bring her to trial within 120 days of her incarceration. Ill.Rev.Stat.1973, ch. 38, par. 103--5, provides in pertinent part:

Every person in custody in this State for an alleged defense 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 * * *.

'Delay occasioned by the defendant' has been construed to mean actual delay. Thus, if some motion was filed by the defendant within the 120 days which caused actual delay, the statutory period is tolled and the 120 days begins to run anew. People v. Nunnery, 54 Ill.2d 372, 297 N.E.2d 129 (1973). In the instant case, defendant filed a motion to dismiss the indictment on the 79th day and asked that an evidentiary hearing be held. It is notable that the day the hearing was held was scheduled to be the date for commencement of trial. We hold that the motion to dismiss the indictment caused a delay occasioned by the defendant. Defendant argues that she was not given a copy of the indictment until 19 days after indictment and that her motion to dismiss, filed 11 days later, was timely. We agree. But that does not relieve defendant of the burden of the delay. It is the nature of the motion that is crucial. That defendant might have been able to present and argue her motion earlier does not mitigate the fact that a delay was inevitable. Defendant also asserts that delays attributable to the State and the court contributed to the passage of time. In the view we take of the case, however, defendant was tried within 120 days of the July 17 motion to dismiss the indictment. While this Court has noted its disapproval of inaction by the State as well as the defendant on disposition of motions, People v. Terry, 24 Ill.App.3d 197, 321 N.E.2d 21 (1974), we find no such problem here. The motion filed July 17 to dismiss the indictment caused some delay occasioned by the defendant and she therefore was not entitled to discharge under section 103--5 on September 24 when trial was commenced.

Appellant's final contention is that, because of an erroneous instruction given, she was actually convicted of robbery and that the cause should be remanded for resentencing on that offense. It appears from the trial transcript that defendant's sole trial stratagem was that Defendant's...