13 June 2000

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THE PEOPLE OF THE STATE OF			)	Appeal from the Circuit CourtILLINOIS,					)	of Lake County.						)Plaintiff-Appellee,				)							)v.						)	No. 96--CF--2499						)						)	HonorableFELIX ORTIZ,					)	Barbara C. Gilleran Johnson and						)	John T. Phillips,Defendant-Appellant.				)	Judges, Presiding.

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JUSTICE RAPP delivered the opinion of the court:

Following a bench trial, defendant, Felix Ortiz, was convictedof two possession-of-controlled-substances offenses (720 ILCS570/402(c) (West 1996)). Defendant appeals, alleging a speedytrial violation and a violation of the one-act-one-crime rule. TheState concedes that defendant is entitled to relief under the one-act-one-crime rule and we agree. We affirm in part and remand withdirections.

I. FACTS

As taken from the record presented by defendant, the factsrelevant to this appeal are as follows. On September 6, 1996, defendant was arrested in Waukegan, Illinois, on anoutstanding Wisconsin armed robbery warrant. Pursuant to thearrest, officers discovered cash, cocaine, and heroin on defendant. Defendant was cited for the drug offenses and detained untilSeptember 17, 1996, when he posted bond. On September 25, 1996, athree-count indictment was returned against defendant. Count I ofthe indictment alleged unlawful possession of less than 10 grams ofheroin with intent to deliver (720 ILCS 570/401(d) (West 1996)),and counts II and III alleged unlawful possession of less than 15grams of heroin and less than 15 grams of cocaine, respectively(720 ILCS 570/402(c) (West 1996)). Count I was later dismissed.

On November 14, 1996, a hearing was held pursuant to theUniform Rendition of Prisoners as Witnesses in Criminal ProceedingsAct (Uniform Witness Act) (725 ILCS 235/1 et seq. (West 1996)). During the hearing, the following colloquy took place.

"THE COURT: [W]e need a new MR number on the petition ofthe State of Wisconsin for case number 96 CF 585, that istheir number, requesting the Defendant be transported as amaterial witness in that case. The Court has before it aproper certification of Judge Wilbur Warren of the need forMr. Ortiz's presence as a witness in case 96 CF 585.

MR. KLEINHUBERT [Assistant State's Attorney]: Is therealso a matter pending where he is a defendant in the State ofWisconsin?

THE COURT: He also --

MR. KLEINHUBERT: Is there a governor's warrant been [sic]issued as to that?

MR. POTKONJAK [defense attorney]: No.

THE COURT: I don't believe so. It will require a waiverfor extradition hearing on that matter.

MR. ORTIZ [defendant]: I already waived it.

MR. POTKONJAK: He says he already waived it.

MR. ORTIZ: I already waived it, Your Honor, out in bondcourt.

* * *

MR. KLEINHUBERT: We are going to need appropriate orderssigned for that to be done. I don't know if it has been.

THE COURT: Mr. Ortiz, that was, in fact, your intent thatpreviously at your other hearing to waive your right tohearing on the extradition matter?

MR. ORTIZ: You mean sign the waiver to go down --

THE COURT: Sign the waiver.

MR. ORTIZ: Yeah.

THE COURT: Well, I will direct the clerk to obtain theSheriff's appropriate paperwork for that waiver as to thatmatter.

Any objection to the Defendant being transported to theState of Wisconsin for purpose as a witness?"

Over defendant's objection, the trial court ordered that defendantbe transported from Lake County to Wisconsin "for the purpose oftestimony in 96 CF 585." The trial court further ordered that,upon the completion of defendant's testimony, he be returned to thecustody of the Lake County sheriff. Defendant then filed a writtenspeedy trial demand (725 ILCS 5/103--5 (West 1996)), and the trialcourt granted defendant's request that his bond be revoked and thathe immediately be returned to custody. No written order asrequired by the Uniform Witness Act is contained in the record.

Though not expressly reflected in the record, defendant wasapparently transported to Wisconsin pursuant to the trial court'srequest. While in Wisconsin, defendant was prosecuted andconvicted on the armed robbery charges and he was imprisoned.Despite attempts as early as December 1996 to secure defendant'sreturn, defendant was not returned to Lake County until 1998pursuant to section 3--8--9 of the Unified Code of Corrections (Detainers Act) (730 ILCS 5/3--8--9 (West 1996)). Again, therecord is incomplete as to defendant's waiver of extradition or asto the reasons that Wisconsin chose to prosecute defendant insteadof returning him to Lake County pursuant to the Uniform WitnessAct.

 Upon his return, defendant moved to dismiss his Lake Countycharges based upon a statutory speedy trial violation. The trialcourt denied the motion, ruling that the Detainers Act rather thanthe speedy trial statute (725 ILCS 5/103--5 (West 1996)) controlledand that defendant was brought to trial within the time prescribedin the Detainers Act. Following defendant's conviction, the trialcourt denied defendant's posttrial motion and sentenced him to twoconcurrent three-year prison terms. The trial court awarded creditfor time served and ordered the sentence to run concurrently withthe sentence being served in Wisconsin. This timely appealfollowed.

II. DISCUSSION

Defendant presents two arguments for our consideration. First, he argues that his conviction should be reversed and heshould be discharged due to a violation of his right to a speedytrial under the speedy trial statute and under the Detainers Act. Second, defendant argues that, if we reject his speedy trialchallenge, then one of his convictions of possession of acontrolled substance should be vacated because he simultaneouslypossessed both substances; thus, his separate controlled-substancesconvictions violated the one-act-one-crime rule.

A. SPEEDY TRIAL

We first address defendant's speedy trial challenge. Section103--5 of the Code of Criminal Procedure implements a criminaldefendant's constitutional right to a speedy trial. 725 ILCS5/103--5 (West 1996). Under the speedy trial statute, a defendantmust be brought to trial within a specified time or be discharged. 725 ILCS 5/103--5(e) (West 1996). A defendant who is in custodymust be brought to trial within 120 days from the date ofincarceration. 725 ILCS 5/103--5(a) (West 1996). A custodialdefendant need not make a speedy trial demand in order for the120-day limitation to begin. People v. Garrett, 136 Ill. 2d 318,329 (1990). On the other hand, a defendant who is free on bail orrecognizance must make a demand for a speedy trial and must bebrought to trial within 160 days from the date that the demand ismade. 725 ILCS 5/103--5(b) (West 1996). In either case, thespeedy trial time limitation is suspended during those times thatthe defendant actually causes or contributes to a delay. 725 ILCS5/103--5(a), (b) (West 1996); see also People v. McDonald, 168 Ill.2d 420, 438 (1995).

Though it is the State's duty to bring a defendant to trialwithin the statutory period, on a motion to dismiss alleging astatutory speedy trial violation, the burden of proof rests withthe defendant. People v. Vasquez, 311 Ill. App. 3d 291, 294(2000). The trial court's ruling on a speedy trial motion will notbe disturbed absent a clear abuse of discretion. Vasquez, 311 Ill.App. 3d at 294. Defendant contends that he did not cause orcontribute to any delay beyond 160 days after he made his speedytrial demand and that therefore the trial court's ruling to thecontrary was an abuse of discretion. We disagree with defendant.

Before addressing the applicable facts, we note thatdefendant, as appellant in this case, has failed to provide us witha complete record. To determine whether a claimed error warrantsrelief, a court of review must have before it a complete record ofthe proceedings from which an appellant claims error. Webster v.Hartman, 309 Ill. App. 3d 459, 460 (1999). The burden ofpresenting a sufficiently complete record rests with the appellant,and any doubts arising from an incomplete record will be resolvedagainst the appellant. People v. Leon, 306 Ill. App. 3d 707, 714(1999). Also, a reviewing court may affirm a lower court for anyreason supported by the record. Aboufariss v. City of De Kalb, 305Ill. App. 3d 1054, 1058 (1999). A lower court's judgment, not itsreasoning, is the crux of appellate review. Aboufariss, 305 Ill.App. 3d at 1058.

Here, during the hearing pursuant to the Uniform Witness Act,defendant stated that he had previously waived extradition on hisWisconsin warrant. The record contains nothing indicating thatdefendant's statement that he waived extradition was false. Thus,defendant was aware that, if sent to Wisconsin, he would be subjectto prosecution there. Granted, defendant objected to being sent toWisconsin as a witness, and Illinois sent him despite hisobjection. However, once defendant was in Wisconsin, his act ofwaiving extradition kept him there and caused a substantial delayin his Illinois trial. If there are two reasons for a speedy trialdelay, one attributable to the State and the other to thedefendant, the fact that the delay was partially attributable tothe defendant is sufficient to toll the statutory period. Peoplev. Smith, 251 Ill. App. 3d 839, 843 (1993). Defendant and theState each partially share the blame for the delay in this case. Thus, because defendant was partially to blame, the statutoryperiod tolled until the Detainers Act was properly invoked. Thetrial court's ruling that the Detainers Act, rather than the speedytrial statute, applied was not a clear abuse of discretion.

Nor was the trial court's finding that defendant was timelytried under the Detainers Act an abuse of discretion. TheDetainers Act requires that a defendant be brought to trial within180 days of the defendant's initiation of proceedings under the Actand within 120 days of the defendant's arrival in the prosecutingstate. 730 ILCS 5/3--8--9(a)(III)(a), (a)(IV)(c) (West 1998); seeMcDonald, 168 Ill. 2d at 436-37. The Detainers Act "speedy trial"provisions are interpreted using the same principles used tointerpret the statutory speedy trial provisions. McDonald, 168Ill. 2d at 438.

Here, the trial court found that defendant initiated theDetainers Act proceeding on March 13, 1998; that defendant arrivedin Illinois on July 29, 1998; and that defendant was brought totrial on September 28, 1998. Furthermore, the trial courtdetermined that defendant caused a 23-day delay in the proceedings,and defendant does not contest this finding. Thus, defendant wasbrought to trial within 180 days of initiating Detainers Actproceedings and within 120 days of arriving in Illinois. Defendant's "speedy trial" rights under the Detainers Act were notviolated.

B. ONE-ACT-ONE-CRIME RULE

We now turn to defendant's one-act-one-crime argument. Defendant contends that one of his convictions of possession of acontrolled substance must be vacated because, as the law existed atthe time of the offense, simultaneous possession of more than onecontrolled substance constituted only a single offense. The Stateagrees and concedes error. We likewise agree and accept theState's concession.

Defendant was tried on charges of simultaneously possessingcocaine and heroin in violation of section 402(c) of the IllinoisControlled Substances Act (720 ILCS 570/402(c) (West 1996)). Atthe time of defendant's trial, section 402 had been recentlyamended by Public Act 89--404 to add the following language:

"A violation of this Act with respect to each of thecontrolled substances listed herein constitutes a single andseparate violation of this Act." Pub. Act 89--404, eff.August 20, 1995 (amending 720 ILCS 570/402 (West 1994)).

Public Act 89--404 was later invalidated by People v. Reedy, 186Ill. 2d 1 (1999), based upon a single-subject violation. Thus,section 402 reverted to its pre-August 20, 1995, form, which didnot contain the quoted language. See 720 ILCS 570/402 (West 1994). The amendment was not reenacted until May 15, 1998, when thelegislature passed Public Act 90--593 (Pub. Act 90--593, eff. June 9, 1998). Defendant's convictions are therefore governed by caselaw interpreting section 402 of the Controlled Substances Act thatexisted prior to the effective date of the reenactment of theamendment. See Johnson v. Edgar, 176 Ill. 2d 499, 511-13 (1997).

Under the earlier version of section 402, the supreme courtheld that simultaneous possession of more than one type ofcontrolled substance constituted a single offense. People v.Manning, 71 Ill. 2d 132, 137 (1978). Accordingly, there can beonly one conviction of possession of a controlled substance andonly one sentence. We, therefore, remand this case with directionsto vacate one of defendant's convictions and corresponding sentenceand to issue a new judgment order and mittimus reflecting only oneconviction of unlawful possession of a controlled substance inviolation of section 402(c) of the Controlled Substances Act.

For the foregoing reasons, the circuit court of Lake County'sdenial of defendant's motion to dismiss on speedy trial grounds isaffirmed. This cause is remanded for revision of the judgmentorder and mittimus in accordance with this decision.

Affirmed in part and remanded with directions.

GEIGER and THOMAS, JJ., concur.