{ "id": 3392785, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANDREW WILBERT, Defendant-Appellant", "name_abbreviation": "People v. Wilbert", "decision_date": "1977-10-13", "docket_number": "No. 62705", "first_page": "954", "last_page": "957", "citations": [ { "type": "official", "cite": "53 Ill. App. 3d 954" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "227 N.E.2d 135", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "137" } ], "opinion_index": 0 }, { "cite": "83 Ill. App. 2d 137", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2557537 ], "pin_cites": [ { "page": "140" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/83/0137-01" ] }, { "cite": "18 Ill. 2d 260", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5329491 ], "opinion_index": 0, "case_paths": [ "/ill-2d/18/0260-01" ] }, { "cite": "26 Ill. 2d 403", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5357049 ], "opinion_index": 0, "case_paths": [ "/ill-2d/26/0403-01" ] }, { "cite": "190 N.E.2d 289", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "291" }, { "page": "291" } ], "opinion_index": 0 }, { "cite": "27 Ill. 2d 493", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5360118 ], "weight": 2, "pin_cites": [ { "page": "495-96" }, { "page": "496" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/27/0493-01" ] }, { "cite": "293 N.E.2d 595", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "53 Ill. 2d 550", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2927327 ], "opinion_index": 0, "case_paths": [ "/ill-2d/53/0550-01" ] }, { "cite": "335 N.E.2d 769", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "61 Ill. 2d 298", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2966390 ], "opinion_index": 0, "case_paths": [ "/ill-2d/61/0298-01" ] } ], "analysis": { "cardinality": 420, "char_count": 7787, "ocr_confidence": 0.846, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.09471691206707418 }, "sha256": "2b08e3139ea1ee4324c30aaa5cf016a16c085ff1e2e8cdcf8957c601fcdc7983", "simhash": "1:eeafd5b937c8bff5", "word_count": 1323 }, "last_updated": "2023-07-14T21:36:14.469992+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. ANDREW WILBERT, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE LINN\ndelivered the opinion of the court:\nFollowing a jury trial, defendant, Andrew Wilbert, was found guilty of unlawful use of a weapon within five years after having been released from the penitentiary upon a felony conviction (Ill. Rev. Stat. 1973, ch. 38, pars. 24\u20141(a)(10) and (b)). He was sentenced to a term of 3 to 10 years. Defendant on appeal contends that he should have been discharged for violation of his statutory right to a speedy trial under section 103\u20145(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1973, ch. 38, par. 103\u20145(a)).\nWe affirm the decision of the trial court.\nOn October 24, 1973, defendant was arrested and charged with aggravated assault and unlawful use of a weapon. The incident involved his firing a gun at a 15-year-old girl, and slapping her while he held the gun at her head. These acts occurred in the elevator and hallway of the building in which the girl lived. On January 23,1974, defendant entered a plea of guilty to aggravated assault for which he was sentenced to 10 days in jail. At that time, the misdemeanor charge of unlawful use of a weapon was stricken with leave to reinstate and a new complaint was filed charging a felony for unlawful use of a weapon based on defendant\u2019s prior conviction for aggravated battery. (See Ill. Rev. Stat. 1973, ch. 38, par. 24\u20141(b).) After the preliminary hearing on this complaint, the court made a finding of probable cause.\nOn March 14, 1974, defendant was indicted for unlawful use of a weapon pursuant to the above finding of probable cause. On March 25, 1974, defendant entered his plea of not guilty and filed a motion for four-term discharge which was subsequently denied. Thereafter, the court clerk\u2019s half sheet indicates that a number of continuances were granted until March 26,1975. Most were by agreement of the parties and others on motion of defendant. On March 26, 1975, defendant filed a motion to quash the indictment because the aggravated battery conviction, which was the basis for the enhanced penalty upon conviction for unlawful use of a weapon, was a misdemeanor. Section 24\u20141(b) provided the enhanced penalty if an accused was convicted of unlawful use of a weapon and had been released from the penitentiary on a prior felony conviction within the preceding 5 years. Ill. Rev. Stat. 1973, ch. 38, par. 24\u20141(b).\nThe State thereafter reindicted defendant on May 15, 1975, for unlawful use of a weapon based upon defendant\u2019s underlying 1969 conviction for attempted robbery. On May 21, 1975, defendant filed a third motion for four-term discharge. This motion was denied and on May 27, 1975, the matter proceeded to a jury trial on the second indictment. The jury found defendant guilty of unlawful use of a weapon and of unlawful use of a weapon within 5 years after having been released from the penitentiary. The sufficiency of the evidence is not questioned.\nThe delay relied upon by defendant in seeking his discharge occurred between October 24, 1973, the day of his arrest, and May 15,1975, when he was reindicted for unlawful use of a weapon based on a prior (1969) felony conviction for attempted robbery. He contends the lengthy delay between his initial misdemeanor charge of unlawful use of a weapon and his subsequent indictment for the felony offense was violative of his statutory right to a speedy trial.\nA defendant, who is in custody, must be tried within 120 days of being taken into custody unless he occasions delay in the proceedings. (People v. Gooding (1975), 61 Ill. 2d 298, 335 N.E.2d 769; Ill. Rev. Stat. 1973, ch. 38, par. 103\u20145(a).) However, the record shows that on January 23, 1974, defendant entered a plea of guilty to the charge of aggravated assault. This plea tolled the 120-day term and a new period began to run in which the State had to try defendant on the remaining charge unless defendant caused del\u00e1y. (Ill. Rev. Stat. 1973, ch. 38, par. 103\u20145(e).) Thereafter, on March 14, 1974, defendant was indicted for the felony offense of unlawful use of a weapon based on a prior conviction of aggravated battery. This indictment was obtained well within the limitation period set by the aforesaid statute. See People v. Zuniga (1973), 53 Ill. 2d 550, 293 N.E.2d 595.\nBeginning March 25, 1974, until May 15, 1975, when defendant was reindicted, numerous delays were caused by defendant\u2019s actions in filing a motion for discharge on March 25,1974, a motion for a reduction of bail on June 7,1974, and a motion to quash the indictment on March 26,1975, as well as many continuances obtained by agreement or on motion of defendant. In People v. Hamby (1963), 27 Ill. 2d 493, 495-96, 190 N.E.2d 289, 291, our supreme court stated:\n\u201cWhere, \u00b0 \u00b0 \u00b0, the accused has sought and obtained a continuance, or agrees to a continuance, or in any manner causes delay in trial by his own action, the four-months period is renewed and starts to run again from the date the delay occurred, or to which the cause was continued. People v. Stahl, 26 Ill. 2d 403; People v. Rankins, 18 Ill. 2d 260.\u201d\nDefendant raises the point that the original indictment erroneously was based on his prior misdemeanor conviction for aggravated battery and that the reindictment based upon a prior felony conviction of attempt robbery created a different offense. The offense charged in the first indictment is the same as that charged in the second indictment. The State merely sought to properly establish the basis for an enhanced penalty for unlawful use of a weapon in the latter indictment. When defendant claimed that the prior conviction of aggravated battery was a misdemeanor, the matter was presented to the grand jury a second time to obtain a corrected indictment. The original indictment was nolle prossed and trial was held on the new indictment.\nIn People v. Stuckey (1967), 83 Ill. App. 2d 137, 140, 227 N.E.2d 135, 137, it was held:\n\u201cThe sufficiency of the indictment is immaterial to the enforcement of the [Four Term] act unless there is some showing that the State has nolle prossed an indictment and reindicted solely for the purpose of circumventing the statute.\u201d\nAgain, in People v. Hamby (1963), 27 Ill. 2d 493, 496, 190 N.E.2d 289, 291, it was stated:\n\u201cWhile the original indictment and count 2 of the second indictment were nolle prossed by the People, there was no determination by the court as to their validity, nor was there any showing or suggestion that they had been procured by fraudulent means or for an unlawful purpose. At most they were inartistically drawn, and while the People may not nolle prosse and reindict solely for the purpose of defeating the four-months statute, the motions to test the validity of the indictments in this case and the delay occasioned thereby were correctly charged to defendant. Were it otherwise the People would be obliged to either successfully defend all such motions or incur the risk of the accused being discharged under the statute. Such perfection cannot be demanded, even of the People, nor should such a weapon to permit potential abuse be placed in the hands of an accused.\u201d\nAfter carefully considering defendant\u2019s contentions, it is our opinion that defendant\u2019s statutory right to a speedy trial was not denied. Accordingly, the judgment of the circuit court of Cook County is affirmed.\nJudgment affirmed.\nJOHNSON and ROMITI, JJ., concur.", "type": "majority", "author": "Mr. JUSTICE LINN" } ], "attorneys": [ "James J. Doherty, Public Defender, of Chicago (Andrew J. Kleczek, Assistant Public Defender, of counsel), for appellant.", "Bernard Carey, State\u2019s Attorney, of Chicago (Laurence J. Bolon and Joan S. Cherry, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANDREW WILBERT, Defendant-Appellant.\nFirst District (4th Division)\nNo. 62705\nOpinion filed October 13, 1977.\nJames J. Doherty, Public Defender, of Chicago (Andrew J. Kleczek, Assistant Public Defender, of counsel), for appellant.\nBernard Carey, State\u2019s Attorney, of Chicago (Laurence J. Bolon and Joan S. Cherry, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0954-01", "first_page_order": 976, "last_page_order": 979 }