{ "id": 3292461, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JOSEPH CUNNINGHAM, Defendant-Appellee", "name_abbreviation": "People v. Cunningham", "decision_date": "1979-11-13", "docket_number": "No. 78-569", "first_page": "949", "last_page": "953", "citations": [ { "type": "official", "cite": "77 Ill. App. 3d 949" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "70 Ill. App. 2d 474", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2589392 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/70/0474-01" ] }, { "cite": "45 Ill. App. 3d 973", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2895763 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/ill-app-3d/45/0973-01" ] }, { "cite": "111 Ill. App. 2d 484", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1593062 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/ill-app-2d/111/0484-01" ] }, { "cite": "45 Ill. App. 3d 627", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2895555 ], "year": 1969, "pin_cites": [ { "page": "633" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/45/0627-01" ] }, { "cite": "26 Ill. App. 3d 282", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2787216 ], "pin_cites": [ { "page": "283" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/26/0282-01" ] }, { "cite": "32 Ill. App. 3d 825", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2791160 ], "pin_cites": [ { "page": "827" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/32/0825-01" ] }, { "cite": "27 Ill. App. 3d 778", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2868988 ], "pin_cites": [ { "page": "780" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/27/0778-01" ] }, { "cite": "54 Ill. 2d 372", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2934127 ], "weight": 3, "pin_cites": [ { "page": "376" }, { "page": "377" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/54/0372-01" ] }, { "cite": "25 Ill. App. 3d 88", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2705139 ], "pin_cites": [ { "page": "91" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/25/0088-01" ] }, { "cite": "44 Ill. App. 3d 101", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2816866 ], "weight": 2, "year": 1976, "pin_cites": [ { "page": "102" }, { "page": "103" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/44/0101-01" ] }, { "cite": "67 Ill. 2d 423", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5811748 ], "weight": 2, "pin_cites": [ { "page": "427" }, { "page": "427" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/67/0423-01" ] }, { "cite": "61 Ill. 2d 298", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2966390 ], "pin_cites": [ { "page": "301" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/61/0298-01" ] }, { "cite": "36 Ill. 2d 524", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5378747 ], "pin_cites": [ { "page": "529" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/36/0524-01" ] } ], "analysis": { "cardinality": 454, "char_count": 8255, "ocr_confidence": 0.903, "pagerank": { "raw": 2.9181682644159915e-07, "percentile": 0.8463122753488717 }, "sha256": "43224100ec77fe4301266935629df6c30ca78e3250bf4f2a2f8d42c2e0c7eac7", "simhash": "1:2fc8d778f268ccb0", "word_count": 1450 }, "last_updated": "2023-07-14T21:36:13.635442+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. JOSEPH CUNNINGHAM, Defendant-Appellee." ], "opinions": [ { "text": "Mr. JUSTICE SEIDENFELD\ndelivered the opinion of the court:\nThe State appeals from an order discharging the defendant, Joseph E. Cunningham, on a complaint of aggravated battery, pursuant to his motion under the speedy-trial provision of the Illinois Code of Criminal Procedure. In issue is whether defense counsel\u2019s silence when the date was set by the court beyond the applicable 160-day term amounts to an agreement and waiver of defendant\u2019s right to a speedy trial.\nThe statute as applicable, in substance, provides that a defendant on bail shall be tried within 160 days from the date he demands trial unless the delay \u201cis occasioned by the defendant\u201d; and any delay so occasioned will \u201ctemporarily suspend for the time of the delay the period 6 \u00b0 Ill. Rev. Stat. 1977, ch. 38, par. 103 \u2014 5(b), (f).\nIt is agreed that the defendant is charged with occasioning a 14-day delay by his motion for a continuance prior to his plea, and a 6-day delay when he failed to appear for arraignment. The State has also claimed that a failure to answer the State\u2019s discovery motion should also be considered as delay attributable to defendant. However, it appears that the defense would not have had to file discovery until after the period had run, if it is found to have run, and we agree with the trial court\u2019s finding that this was not a delay occasioned by the defendant. The trial was not set until well over 200 days from the defendant\u2019s arrest. Unless a further delay occasioned by the defendant is shown the defendant was properly discharged.\nIt appears that the 160-day term would therefore have expired on June 5,1978. On May 18,1978, however, the parties were before the court and the following colloquy took place:\n\u201cTHE COURT: Is there any problem with speedy trial demand?\nMR. BART [Ass\u2019t State\u2019s Attorney]: There is, Judge.\nMR. SCOTT [defense counsel]: There is, Judge.\nMR. BART: Judge, I think\u2014\nTHE COURT: What\u2019s the speedy trial date?\nMR. BART: I\u2019m not certain. The Defendant\u2019s had a number of continuances in his case.\nI think the speedy trial \u2014 my last calculation was about the 4th or the 5th of the week, about the 5th or so, of July. That was my last calculation. Of course, that week is a non-jury week.\nTHE COURT: Let\u2019s set a trial date within the 160 days so we don\u2019t run into problems.\nMR. SCOTT: Can I get my book please?\nTHE COURT: What?\nMR. SCOTT: Can I get my book, please.\nTHE COURT: So, we have to set it the week before that, the week of June 26th.\nSet it for June 26th. Everybody note the trial date, and\u2014\nMR. SCOTT: I think it would take us about two days to try it, Judge. I don\u2019t think it\u2019s going to be terribly complicated.\u201d\nIt thus appears that the trial date was suggested by the court and not objected to by defense counsel. It would therefore appear that defendant neither affirmatively agreed to the setting of the trial date nor was shown to have been unprepared to try the case earlier.\nIn considering whether \u201cdelay is occasioned by the defendant\u201d courts will examine the facts \u201cto prevent a \u2018mockery of justice\u2019 either by technical evasion of the right to speedy trial by the State, or by a discharge of a defendant by a delay in fact caused by him.\u201d (People v. Fosdick (1967), 36 Ill. 2d 524, 529.) It has also been held that where a defendant requests or agrees to a continuance he is charged with occasioning delay. (See People v. Gooding (1975), 61 Ill. 2d 298, 301.) The defendant bears the burden of proof on his motion for discharge. (People v. Beyah (1977), 67 Ill. 2d 423, 427.) However, it has been held that the delay cannot be attributed to a defendant when the record is silent. (People v. Jordan (1976), 44 Ill. App. 3d 101, 102.) The decision of the trial court that the delay should or should not be attributable to the defendant is to be upheld unless it is clearly shown to be an abuse of discretion. People v. Jordan (1976), 44 Ill. App. 3d 101, 103. See also People v. Thomas (1975), 25 Ill. App. 3d 88, 91.\nEssentially, the rule to be gleaned from the Illinois cases which have interpreted the Illinois speedy-trial provision is that a defendant will be held to have waived his right to a speedy trial where by his affirmative act he has contributed to actual delay of the trial or where there has been an express agreement to the continuance on the record. In People v. Nunnery (1973), 54 Ill. 2d 372, the defendant was arraigned 115 days after his arrest; the defense counsel was appointed at arraignment, and the trial date was set beyond the period after the State had stated there were six weeks left in the period. In holding that the defendant was entitled to a discharge the Illinois Supreme Court first noted that the record contained no explanation of why defendant\u2019s arraignment and the appointment of counsel were delayed until he had been incarcerated for 115 days (54 Ill. 2d 372, 376) and made note of the fact that it was the State\u2019s Attorney who erroneously advised the court that the statutory period would not run for six more weeks, with nothing in the record to indicate that defense counsel knew differently (54 Ill. 2d 372,377). In People v. Williams (1975), 27 Ill. App. 3d 778, 780, the State asserted the claim, as here, that the period was tolled because the defendant acquiesced in the indefinite continuance of the case. However, the court found nothing in the record to show any acts of the defendant which would support the claim and noted that no presumption of an agreement could be based on a silent record.\nThe State\u2019s argument that the defense attorney had a duty to notify the court of the possible running of the statute is not persuasive under the circumstances. Under the Illinois statute the State has the duty to bring the defendant to trial within the statutory period. (People v. Beyah (1977), 67 Ill. 2d 423, 427.) It is clear that defense counsel answered the judge\u2019s question whether there was a problem with the speedy trial statute affirmatively, as did the State. The most that can be said from the record is that the State miscalculated the date and that defense counsel, without any evidence of fraud or subterfuge, failed to correct the mistake. The State\u2019s argument in this regard would impose a greater duty on a defense counsel than upon the State, for the defense attorney would be bound to precisely figure the date of the running of the period or face the possible estoppel, while the State could always rely upon the duty of the defendant to calculate properly. Moreover, there is nothing in the record to indicate that the defense attorney knew that the period had run. In People v. Uryasz (1975), 32 Ill. App. 3d 825, 827, the court refused to attribute delay to the defendant despite his agreement to a date for a preliminary hearing, noting that the date was set by the court and defense counsel \u201cmerely agreed to the date and did not seek a delay in holding the preliminary hearing.\u201d See also People v. Moore (1975), 26 Ill. App. 3d 282, 283.\nThe cases cited by the State for its position that the defendant acquiesced in setting the trial date beyond the 160-day limit do not support its position. In People v. Walker (1977), 45 Ill. App. 3d 627, 633, the court found that the defendant through counsel had affirmatively agreed to the setting of the date beyond the period. People v. Whittenburg (1969), 111 Ill. App. 2d 484; People v. Criss (1977), 45 Ill. App. 3d 973; and People v. Rogers (1966), 70 Ill. App. 2d 474, are all cases in which the defense attorney specifically agreed to a continuance. In other cases cited by the State there was evidence that defense counsel was not ready at an earlier date, whereas here there was no such evidence.\nOn the totality of this record we conclude that the trial court properly granted the motion for a discharge and the judgment is affirmed.\nAffirmed.\nWOODWARD and NASH, JJ., concur.", "type": "majority", "author": "Mr. JUSTICE SEIDENFELD" } ], "attorneys": [ "J. Michael Fitzsimmons, State\u2019s Attorney, of Wheaton (John T. Eisner, Robert L. Thompson and Edmund P. Bart, Assistant State\u2019s Attorneys, of counsel), for the People.", "William J. Scott, Jr., of Mirabella & Kincaid, of Wheaton, for appellee." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JOSEPH CUNNINGHAM, Defendant-Appellee.\nSecond District\nNo. 78-569\nOpinion filed November 13, 1979.\nJ. Michael Fitzsimmons, State\u2019s Attorney, of Wheaton (John T. Eisner, Robert L. Thompson and Edmund P. Bart, Assistant State\u2019s Attorneys, of counsel), for the People.\nWilliam J. Scott, Jr., of Mirabella & Kincaid, of Wheaton, for appellee." }, "file_name": "0949-01", "first_page_order": 971, "last_page_order": 975 }