{ "id": 2995519, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ROY BROWN, Defendant-Appellee", "name_abbreviation": "People v. Brown", "decision_date": "1982-11-05", "docket_number": "No. 81-655", "first_page": "443", "last_page": "449", "citations": [ { "type": "official", "cite": "110 Ill. App. 3d 443" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "56 Ill. 2d 175", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5405086 ], "opinion_index": 0, "case_paths": [ "/ill-2d/56/0175-01" ] }, { "cite": "3 Ill. App. 3d 919", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2843218 ], "year": 1974, "pin_cites": [ { "page": "930" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/3/0919-01" ] }, { "cite": "15 Ill. 2d 527", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2767528 ], "year": 1971, "pin_cites": [ { "page": "531" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/15/0527-01" ] }, { "cite": "81 Ill. App. 2d 220", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2542691 ], "pin_cites": [ { "page": "227-29" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/81/0220-01" ] }, { "cite": "26 Ill. 2d 552", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5354655 ], "year": 1967, "pin_cites": [ { "page": "554" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/26/0552-01" ] }, { "cite": "92 Ill. 2d 101", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3098172 ], "opinion_index": 1, "case_paths": [ "/ill-2d/92/0101-01" ] }, { "cite": "297 N.E.2d 129", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 1 }, { "cite": "54 Ill. 2d 372", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2934127 ], "year": 1980, "opinion_index": 1, "case_paths": [ "/ill-2d/54/0372-01" ] }, { "cite": "414 N.E.2d 110", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 1 }, { "cite": "90 Ill. App. 3d 975", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3158684 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/ill-app-3d/90/0975-01" ] }, { "cite": "317 N.E.2d 529", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 1 }, { "cite": "58 Ill. 2d 202", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2953301 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/ill-2d/58/0202-01" ] }, { "cite": "420 N.E.2d 1132", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "1135" } ], "opinion_index": 1 }, { "cite": "96 Ill. App. 3d 136", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 12125255 ], "weight": 2, "pin_cites": [ { "page": "140" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/96/0136-01" ] }, { "cite": "390 N.E.2d 586", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "71 Ill. App. 3d 932", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5578356 ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/71/0932-01" ] }, { "cite": "367 N.E.2d 449", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "52 Ill. App. 3d 229", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3387125 ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/52/0229-01" ] }, { "cite": "280 N.E.2d 787", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "155 N.E.2d 622", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1971, "opinion_index": 1 }, { "cite": "418 N.E.2d 840", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "year": 1959, "pin_cites": [ { "page": "846" }, { "page": "846-47" } ], "opinion_index": 1 }, { "cite": "94 Ill. App. 3d 241", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3126525 ], "weight": 5, "year": 1959, "pin_cites": [ { "page": "249" }, { "page": "249" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/94/0241-01" ] }, { "cite": "3 Ill. App. 3d 919", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2843218 ], "year": 1974, "opinion_index": 1, "case_paths": [ "/ill-app-3d/3/0919-01" ] }, { "cite": "15 Ill. 2d 527", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2767528 ], "year": 1971, "opinion_index": 1, "case_paths": [ "/ill-2d/15/0527-01" ] } ], "analysis": { "cardinality": 680, "char_count": 15142, "ocr_confidence": 0.767, "pagerank": { "raw": 8.191992039561262e-08, "percentile": 0.4757331411985795 }, "sha256": "3d07c34695d7d73a515b5340c3e6e5519174a06380550dc526085651897d419b", "simhash": "1:23cff27effe156a4", "word_count": 2586 }, "last_updated": "2023-07-14T17:28:01.901115+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v ROY BROWN, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE HEIPLE\ndelivered the opinion of the court:\nThis case involves the dismissal of all charges against a criminal defendant for failure of the People to comply with the 160-day speedy trial statute. (Ill. Rev. Stat. 1979, ch. 38, par. 103 \u2014 5(b).) The People appeal.\nDefendant was originally charged with aggravated battery on July 10, 1980. He was arrested, posted bail and was released. On July 31, 1980, he pleaded not guilty and demanded a speedy jury trial.\nOn September 29, 1980, a pretrial conference was held and, by agreement of counsel, the cause was continued to December for trial.\nAt the December 8, 1980, trial call, defendant said he was unprepared to defend on a newly added rape count. Defendant did not object, however, to the amendment of the information which added this count.\nThe following colloquy then took place between the prosecutor, the court, and defense counsel:\n\u201cMR. NAYLOR: Your Honor, I simply want to observe that the parties have agreed that the jury trial scheduled for this date on aggravated battery is continued by agreement of the parties due to the addition of the Count on rape, and that it is contemplated it will be continued from the day \u2014 today to the next jury calendar on both Counts.\nTHE COURT: Mr. Vierling?\nMR. VIERLING [defense counsel]: That\u2019s correct.\nTHE COURT: I\u2019ll show that the matter is continued by agreement on both Counts to the next jury calendar, which you gentlemen are aware is in February.\nMR. NAYLOR: Yes, Your Honor.\nTHE COURT: Thank you. Anything further, Mr. Vierling, in this case?\nMR. VIERLING: Nothing, Your Honor.\nTHE COURT: Thank you. That\u2019ll be all.\u201d\nThe matter was thus continued twice by agreement of the parties. Both sides agreed to placing the case on the December jury calendar and the February jury calendar. It is well settled that the statutory speedy trial term is tolled where a defendant requests, stipulates to, or consents to a continuance. (People v. Tillman (1963), 26 Ill. 2d 552, 554; People v. Canada (1967), 81 Ill. App. 2d 220, 227-29.) Unmistakably, defendant acquiesced in the trial scheduling. Accordingly, the delay from September 29, 1980, to February 9, 1981, is attributable to the defendant.\nOn February 9, 1981, when the case was called for trial, the People answered ready. Defendant again requested a continuance. He wanted to hire a new lawyer. Up to that point, Mr. Brown had been represented by the public defender, Mr. Vierling. During this hearing, Mr. Vierling stated that the trial of the case \u201c*** was originally docketed for September. I took a continuance then. *** I just wasn\u2019t ready ***.\u201d He also stated he agreed to the December 8 continuance. Five minutes before jury selection commenced, Mr. Brown entered a negotiated plea of guilty to aggravated battery in exchange for a nolle prosequi on the rape charge, and a recommendation of a five-year prison term. After a hearing, the plea was accepted. Defendant was sentenced to five years\u2019 imprisonment. At that point, the defendant\u2019s speedy-trial rights were tolled. It is the law of this State that a guilty plea negatives the right to a speedy trial. People v. De Cola (1959), 15 Ill. 2d 527, 531; and see People v. Hickman (1971), 3 Ill. App. 3d 919, 930, aff\u2019d as modified (1974), 56 Ill. 2d 175.\nThen, on February 13, 1981, defendant was back in court with a new attorney, Mr. O\u2019Connell, on a motion to vacate his guilty plea. This motion was unopposed by the People and was scheduled for a hearing. During such hearing, the following colloquy occurred:\n\u201cMR. NAYLOR: I would also like to stipulate that by actions of the defendant he has tolled the 160 days speedy trial period because I don\u2019t think that the state should be caused to suffer a dismissal of charges under the speedy trial act.\nMR. O\u2019CONNELL: I have no problem with that.\nTHE COURT: All right, that is shown that there is no question about the 160 days on the part of the defendant\u2019s attorney. I will set it again ***.\u201d\nThe assertion of defendant\u2019s counsel is clear. The 160-day speedy-trial period was tolled. The period began anew on February 13,1981.\nDefense counsel subsequently filed a motion for supplemental discovery on March 17, a motion to suppress on March 19, and a motion to dismiss for want of speedy trial on April 21.\nOn April 27, 1981, a hearing was held on defendant\u2019s motion to dismiss. However, Judge Evans terminated the hearing after it had begun and recused himself when it became apparent to him that defendant\u2019s evidence was different from what the judge recalled. The cause was referred to the chief judge for assignment of a different judge to hear this motion. The motion was subsequently set for hearing before a different judge on May 28, 1981. The delay from April 27, 1981, to May 28, 1981, is directly related to defendant\u2019s speedy-trial motion and is thus chargeable to the defendant.\nFurther delays were caused by the defendant. Defense counsel could not appear on May 28 due to a scheduling conflict which caused a continuance until June 29,1981.\nOn June 29, the court continued the hearing on its own motion to July 10. On July 10, the motion hearing was again continued on defendant\u2019s motion to July 17. On July 17, the hearing was continued on the People\u2019s motion and the motion was finally heard on August 21,1981.\nA total of 189 days elapsed between February 13, when the defendant withdrew his guilty plea and August 21 when the court held its final hearing on defendant\u2019s ill-founded speedy-trial motion. Subtracting the 63 days chargeable to the defendant leaves 126 days chargeable to the People. It is thus seen that on the day of the final hearing on defendant\u2019s speedy-trial motion, there were 34 days still remaining within the 160-day period during which the defendant could have been tried without violating his right to a speedy trial under the statute. The trial judge was in error in granting the defendant\u2019s speedy-trial motion and in dismissing the charges against him.\nFor the reasons stated, the dismissal order of the Hancock County Circuit Court is reversed. The cause is reinstated and remanded to that court for trial within 160 days from the issuance of the mandate.\nReversed and remanded.\nALLOY, J., concurs.", "type": "majority", "author": "JUSTICE HEIPLE" }, { "text": "PRESIDING JUSTICE BARRY,\ndissenting:\nIn adopting the State\u2019s position on appeal and reversing the trial court, the majority ignores the principle espoused in People v. Williams (1981), 94 Ill. App. 3d 241, 418 N.E.2d 840, which is applicable when the State adds charges sometime after proceedings have begun on related offenses. I also believe that the majority\u2019s reliance on People v. De Cola (1959), 15 Ill. 2d 527, 155 N.E.2d 622, and People v. Hickman (1971), 3 Ill. App. 3d 919, 280 N.E.2d 787, is misplaced where, as here, a plea of guilty is vacated by the trial court.\nAs I see it, the withdrawal of a guilty plea and vacatur of judgment are not rights of a defendant which may be exercised or not at the defendant\u2019s whim. Rather, they are allowed or not at the discretion of the trial court upon consideration of allegations of defects in the guilty plea proceedings. See, e.g., 73 Ill. 2d R. 604(d); People v. Williams (1977), 52 Ill. App. 3d 229, 367 N.E.2d 449.\nAs such, we are not presented here with a situation wherein the defendant has manipulated delays at will, pleaded guilty to the charges against him, and decided to withdraw his plea, all with the intended result that the statutory period of limitations would run before the State could get the defendant to trial. (Cf. People v. George (1979), 71 Ill. App. 3d 932, 390 N.E.2d 586; Hickman.) Lacking a \u201cnovel situation\u201d such as was presented in George and Hickman, I believe that the statutory limitations period applies and requires that the defendant herein be discharged on grounds that the State violated his right to a speedy trial.\nWith respect to the aggravated battery charge, the question before us on appeal is whether the defendant\u2019s plea of guilty served to waive his right to a speedy trial or merely to toll the time. The majority opinion concludes that the guilty plea \u201cnegatives the right to a speedy trial.\u201d In my opinion, the defendant\u2019s plea, which was later vacated, merely tolled the running of the 160-day period during the time that it was in effect.\nThe precise issue was decided in People v. Bowman (1981), 96 Ill. App. 3d 136, 420 N.E.2d 1132. There, the defendant was incarcerated on July 22, 1978, and made a speedy-trial demand prior to his trial on February 5, 1979. The 120-day rule was, therefore, in effect. (Ill. Rev. Stat. 1979, ch. 38, par. 103 \u2014 5(a).) The defendant had entered a negotiated plea of guilty on November 27, 1978, which remained in effect until January 5, 1979, when it was vacated sua sponte by the trial judge. The defendant was tried on February 5, 1979. The defendant conceded that 66 days of delay were attributable to him but urged that the remaining 132 days were chargeable to the State and that he was, accordingly, entitled to a discharge under the speedy trial statute. On these facts, the appellate court determined that the \u201cplea of guilty operated to toll the running of the 120-day rule during the period that elapsed between the entry of such plea and the order vacating it.\u201d (96 Ill. App. 3d 136, 140, 420 N.E.2d 1132, 1135.) Subtracting out the 66 days which the defendant admitted were occasioned by him and the 39 days during which the guilty plea was in effect, the court concluded that the defendant had been brought to trial on the 93d day of the 120-day period; thus, the State had not violated the defendant\u2019s statutory right to a speedy trial.\nApplying the principle of Bowman to the facts before us, I conclude that 123 days of the 160-day period had elapsed prior to the entry of the defendant\u2019s plea: the 60-day period between July 31, 1980, when the speedy-trial demand was made, and September 29, 1980, when a pretrial conference was held and counsel agreed to continue the case; and the 63-day period between December 8, 1980, when the State amended its information, and February 9, 1981, the date set for defendant\u2019s trial. Unlike the majority, I find that the defendant\u2019s acquiescence in the delay between the State\u2019s amendment of the charging instrument and the February 9 trial date did not operate to relieve the State of its continuing burden to bring the defendant to trial promptly on the original charges. It is clear to me that the addition of charges forced the defense to either ask for or acquiesce in a request for a continuance in order to adequately prepare itself on the new charge. See People v. Williams (1981), 94 Ill. App. 3d 241, 418 N.E.2d 840; People v. Shields (1974), 58 Ill. 2d 202, 317 N.E.2d 529.\nFollowing the defendant\u2019s withdrawal of his guilty plea, as I see it, the 160-day period resumed running against the State and was exhausted on March 22 \u2014 37 days after the guilty plea was vacated. Because the defendant was not brought to trial on or before March 22, he was entitled to dismissal as the trial court correctly ruled.\nWith respect to the rape charge, I find guidance in the reasoning of the court in People v. Williams (1981), 94 Ill. App. 3d 241, 418 N.E.2d 840. In Williams, as here, the State amended its information to charge additional offenses based upon the same set of facts as were the original charges. In Williams, the new charges were added on August 11, 1978 \u2014 120 days after the defendants were taken into custody on April 13, 1978. Although defendants had obtained continuances in connection with the original charges, the court held that such continuances \u201ccannot be attributed to defendants with respect to the new and additional charges because these new and additional charges were not before the court when those continuances were obtained.\u201d (94 Ill. App. 3d 241, 249, 418 N.E.2d 840, 846.) In addition, the court ruled that two continuances sought by the defendants \u2014 on August 11 to investigate grounds for a motion to strike the additional charges and on August 14, upon denial of this motion, to prepare their defense to the additional charges \u2014 were chargeable to the State. The court reasoned:\n\u201cThe State had the continuing burden to take the necessary steps to bring about a prompt trial in conformance with the provisions of the speedy trial act. (People v. Perkins (1980), 90 Ill. App. 3d 975, 414 N.E.2d 110.) The record demonstrates that the State had knowledge of all facts necessary to file the new and additional charges long before August 11, 1978. Only the State\u2019s tardiness (for which the State has never offered an explanation) in filing the new and additional charges precluded commencement of prosecution on these charges within the speedy trial term. To charge defendants with a tolling of the term under these circumstances, especially where the need for time to effectuate discovery was essential, would circumvent the very protection the statute aimed to provide. (Accord, People v. Nunnery (1973), 54 Ill. 2d 372, 297 N.E.2d 129; People v. Perkins (1980), 90 Ill. App. 3d 975, 414 N.E.2d 110; of. People v. Shields (1974), 58 Ill. 2d 202, 317 N.E.2d 529.) We necessarily conclude that the State violated defendant\u2019s statutory right to a speedy trial on the nine new charges.\u201d (94 Ill. App. 3d 241, 249, 418 N.E.2d 840, 846-47.)\nIn Williams, as the trial court herein observed, the defendants objected to the State\u2019s addition of charges on the 120th day of the 120-day term for the original charges. In the present case, defense counsel failed to object to the State\u2019s addition of the rape charge on the 130th day of the 160-day period for the original charge. I do not find this distinguishing factor dispositive. The State\u2019s duly to bring about a prompt trial is not diminished by defendant\u2019s failure to object. Nor can it be said that such failure constitutes a waiver by defendant of his statutory right to a speedy trial. (People v. Reimolds (1982), 92 Ill. 2d 101.) In my opinion, Williams squarely addresses the issue before us on the rape charge, and the principles expressed therein control the calculation of days chargeable to the State. Applying Williams to the facts before us, I find that 130 days of the limitation period had elapsed by the date of the addition of the rape charge. In addition, the 63-day period between the date of the amendment and February 9, when the trial was to be held, is chargeable to the State because the defendant was forced to prepare a defense on the new charge. (Williams.) Therefore, for the rape charge, as defendant correctly asserts on appeal, the 160-day limitations period was exhausted before the defendant entered his plea of guilty. I would affirm the order of the trial court.", "type": "dissent", "author": "PRESIDING JUSTICE BARRY," } ], "attorneys": [ "Samuel Naylor, VI, State\u2019s Attorney, of Carthage (John X. Breslin and Kenneth A. Wilhelm, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People.", "R. P. O\u2019Connell, of Richard P. O\u2019Connell, Ltd., and Chet W. Vahle, both of Quincy, for appellee." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v ROY BROWN, Defendant-Appellee.\nThird District\nNo. 81-655\nOpinion filed November 5, 1982.\nBARRY, P.J., dissenting.\nSamuel Naylor, VI, State\u2019s Attorney, of Carthage (John X. Breslin and Kenneth A. Wilhelm, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People.\nR. P. O\u2019Connell, of Richard P. O\u2019Connell, Ltd., and Chet W. Vahle, both of Quincy, for appellee." }, "file_name": "0443-01", "first_page_order": 465, "last_page_order": 471 }