{
  "id": 2863463,
  "name": "The People of the State of Illinois, Plaintiff-Appellee, v. Rickey Vanderbilt, Defendant-Appellant",
  "name_abbreviation": "People v. Vanderbilt",
  "decision_date": "1975-03-20",
  "docket_number": "No. 59883",
  "first_page": "168",
  "last_page": "170",
  "citations": [
    {
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      "cite": "27 Ill. App. 3d 168"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
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      "cite": "301 N.E.2d 118",
      "category": "reporters:state_regional",
      "reporter": "N.E.2d",
      "opinion_index": 0
    },
    {
      "cite": "13 Ill.App.3d 620",
      "category": "reporters:state",
      "reporter": "Ill. App. 3d",
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        5344910
      ],
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        "/ill-app-3d/13/0620-01"
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  "last_updated": "2023-07-14T15:22:05.356803+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "The People of the State of Illinois, Plaintiff-Appellee, v. Rickey Vanderbilt, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE DEMPSEY\ndelivered the opinion of the court:\nRickey Vanderbilt was indicted for rape and deviate sexual conduct. He waived a jury, was found guilty of both offenses and sentenced to the penitentiary for a term of 5 to 15 years. The issue on review is whether he was tried within 120 days of his arrest.\nThe pertinent statute provides that a persoh shall be tried within 120 days from the date he was taken into custody unless delay is occasioned by him, by an examination, hearing or adjudication as to his competency, by his physical incapacity or by an interlocutory appeal. (Ill. Rev. Stat. 1971, ch. 38, par. 103 \u2014 5.) Vanderbilt was arrested on January 3, 1973 and remained in custody until his trial on June 21. On that date \u2014 169 days after his incarceration \u2014 he demanded his discharge. The statute, however, was tolled from January 5 to February 16 because of a psychiatric examination ordered by the court. He was found competent and was subsequently indicted. The parties agree, for the purpose of this appeal, that the 120-day period started anew on February 16 and that it expired 5 days before his trial. They also agree that the test in determining whether the statute had run was what occurred on April 10, 1973 \u2014 which was 53 days after the term recommenced on February 16 and 72 days before the trial.\nVanderbilt was arraigned on April 10, the public defender was appointed to represent him, and his case was assigned to Judge Earl E. Strayhom for trial. On that same day the defendant\u2019s newly appointed counsel and the assistant State\u2019s attorney assigned to Judge Strayhorn\u2019s .courtroom filed pretrial discovery motions. As he filed his motion the defendant\u2019s counsel stated:\n\u201cI am filing this without any intention of delaying the trial.. If there are any parts of the motion that would delay the trial, I would be willing to waive those parts.\u201d\nThe State acknowledged receipt of the motion and the court replied: \u201cAll right.\nReciprocal discovery motions having been filed, the State is granted ten days to file [answer], the defense has ten days thereafter to respond to the State\u2019s request.\nMay 4th, without subpoenas \u2014 \u201d\nThe defendant\u2019s counsel:\n\u201cWe object to it being regarded as under the defense\u2019 motion.\u201d\nThe court:\n\u201cVery well.\u201d\nIt is the State\u2019s view that the defendant\u2019s motion for discovery made a postponement necessary and the delay was therefore occasioned by him. The acceptance of this viewpoint, under the facts of this case, would mean that the mere filing of a discovery motion no matter how tentative, contingent or quickly answered would be enough to stop the running of the statute. This contention was specifically rejected by this court in People v. Scott (1973), 13 Ill.App.3d 620, 301 N.E.2d 118.\nIt is the practice in the Criminal Court of Cook County to appoint counsel for a defendant when he is arraigned and to immediately assign his case to a trial court. The trial court may continue the case on its own motion without subpoenas to an early date to enable the newly appointed counsel to familiarize himself with the case and to interview the defendant. On the next court date appropriate motions may be filed and the case is then set for another date with or without subpoenas by order of the court, by agreement or upon the motion of the party who needs more time to prepare. In the present case it appears that the defense attorney wanted to avoid even the initial continuance. His client had been in custody 97 days and, although he sought to-competently .represent him by asking for discovery, his paramount consideration was-not to be responsible for further delay. .\nAH discovery motions cannot be considered dilatory. Some may take time to answer, some may not. (See People v. Scott.) This one may have required a great deal of time, or maybe the requested information was readily at hand in the prosecutor\u2019s file. :T\u00a1he prosecutor did not say .how much time he needed to comply with the motion and the court gave him 10 days. This order and the one .continuing the- case to May -4 .were entered after the defendant\u2019s attorney had announced that if answering any part of his motion would cause delay, he would withdraw that part. This indicated a willingness .to. withdraw the motion in its entirety, and under these circumstances his discovery, motion cannot be said to have occasioned delay.\nWe assume that Judge Strayhorn was of the same opinion. He gave each side time to respond to the other\u2019s motion,' but he -replied \u201cVery well\u201d when the defendant protested.that the continuance should not be charged to him. We construe the. court\u2019s response to mean acquiescence in the defendant\u2019s objection. The minute clerk charged the continuance to \u201cmotion defendant.\u201d There is nothing in the-transcript of-the proceedings of April 10 to support this entry, and in view of the colloquy between court and counsel we take it to be a clerical misprision.\nIn denying the defendant\u2019s motion for discharge under the \u201cFourth Term\u201d Act, the judge from whom this appeal is taken relied, understandably so, on the clerk\u2019s attribution of delay to ,the defendant. However, since the defendant was not responsible for not having been brought to trial within 120 days of his arrest, he was entitled to discharge. The judgment must be reversed..\nReversed.\nMcGLOON, P. J., and MEJDA, J., concur.",
        "type": "majority",
        "author": "Mr. JUSTICE DEMPSEY"
      }
    ],
    "attorneys": [
      "James Doherty, Public Defender, of Chicago (Aaron Spivack and James N. Gramenos, Assistant Public Defenders, of counsel), for appellant.",
      "Bernard Carey, State\u2019s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Michael E. Shabat, Assistant State\u2019s Attorneys, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "The People of the State of Illinois, Plaintiff-Appellee, v. Rickey Vanderbilt, Defendant-Appellant.\n(No. 59883;\nFirst District (3rd Division)\nMarch 20, 1975.\nJames Doherty, Public Defender, of Chicago (Aaron Spivack and James N. Gramenos, Assistant Public Defenders, of counsel), for appellant.\nBernard Carey, State\u2019s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Michael E. Shabat, Assistant State\u2019s Attorneys, of counsel), for the People."
  },
  "file_name": "0168-01",
  "first_page_order": 194,
  "last_page_order": 196
}