People v. Dockery, No. 5-98-0645

5th District, 17 May 2000

JUSTICE CHAPMAN delivered the opinion of the court:

The circuit court of Randolph County dismissed charges against Paul W. Dockery (defendant) for unlawful possession ofdrug paraphernalia, driving under the influence, illegal transportation of alcohol, and failure to reduce speed to avoid anaccident, because the State failed to provide him with a speedy trial. The State appeals pursuant to section 114-1(a)(1) of theCode of Criminal Procedure of 1963 (the Code) (725 ILCS 5/114-1(a)(1) (1998)) and Supreme Court Rule 604(a)(1) (145Ill. 2d R. 604(a)(1)). It asserts that the trial court erroneously found that defendant's demand for a speedy trial wassufficient. It seeks the reversal of the order dismissing the charges against defendant and a remand for further proceedings.We affirm.

STANDARD OF REVIEW

The issue is whether, as a matter of law, the speedy trial demand made by defendant was sufficient. Given that neither thefacts nor the credibility of witnesses is contested, the issue is one that the reviewing court may consider de novo. See Peoplev. McArthur, 304 Ill. App. 3d 395, 397, 713 N.E.2d 93, 95 (1999).

BACKGROUND

Defendant was involved in a rear-end collision with another vehicle in Randolph County on September 6, 1996. As a resultof the investigation of the collision, defendant was ticketed for unlawful possession of drug paraphernalia, driving under theinfluence, illegal transportation of alcohol, and failure to reduce speed in order to avoid an accident. Defendant made bondand was given notice that he was to appear in court on September 19, 1996, but he failed to appear in court at that hearingor for one reset for October 17, 1996. Counsel filed an entry of appearance November 4, 1996. The caption and body of thefiling read as follows:

"ENTRY OF APPEARANCE

Comes now Thomas M. Daley[] and respectfully enters his appearance on behalf of the defendant, Paul Dockery, forthe above charge(s) and demands a trial by jury."

When defendant failed to appear at a hearing set for November 25, 1996, a warrant issued for his arrest, but the warrant wasquashed on December 5, 1996. On July 15, 1997, defendant filed a letter discharging attorney Daley as counsel. His returnaddress was given as "FPC Yankton, Box 700, Kingsbury 307, Yankton, South Dakota," which was indicative ofdefendant's incarceration in a Federal prison.

On July 22, 1997, at a time when defendant was still in Federal prison, substitute counsel filed an entry of appearance and ademand for a speedy trial. The caption and body of this filing read as follows:

"ENTRY OF APPEARANCE

Now comes Herbert J. Lantz, Jr., attorney at law, and hereby enters his appearance as counsel of record for defendant,Paul Dockery, in the above styled causes.

DEMAND FOR SPEEDY JURY TRIAL

Now comes the defendant, Paul Dockery, by and through his attorney, Herbert J. Lantz, Jr., and demands a speedytrial by jury in the above styled causes."

The cause was set for arraignment on August 28, 1998, and later reset for an arraignment date of September 2, 1998.Defendant, who was not in custody at that time, appeared with counsel on that date. No court reporter was present, butcounsel argued an oral motion for dismissal of the charges on the basis of the violation of defendant's right to a speedy trial.The court granted the motion and dismissed the charges with prejudice.

The State's September 2, 1998, motion for reconsideration was denied without a hearing on September 14, 1998. The courtfound that although defendant made a demand for a speedy trial on July 22, 1997, and the State's Attorney was aware thatdefendant was discharged from Federal custody in November 1997, it failed to place defendant's cases on the docket for ajury in a timely manner. The court ruled that defendant was therefore entitled to the dismissal of the charges. The Statecontends that attorney Lantz's combined entry of appearance and motion for speedy jury trial was insufficient to constitute ademand for a speedy trial.

DISCUSSION

Section 103-5 of the Code (725 ILCS 5/103-5 (West 1998)) is a codification of the defendant's constitutional right to aspeedy trial. See People v. Reimolds, 92 Ill. 2d 101, 106, 440 N.E.2d 872, 874 (1982). The principal purpose of the speedytrial clause is to protect accused parties from unnecessary delay on the part of the government in bringing them to trial. SeePeople v. Williams, 299 Ill. App. 3d 143, 147, 700 N.E.2d 753, 756 (1998). If, as here, the defendant is not in custodybecause he has been released on bond or his own recognizance, the State has 160 days in which to begin trial (see 725 ILCS5/103-5(b) (West 1998)). The statute requires that a demand for a speedy trial must be made and that the period in whichtrial must be commenced does not begin to run until that demand is made. See People v. Garrett, 136 Ill. 2d 318, 324, 555N.E.2d 353, 356 (1990).

This court has held that a demand for speedy trial (1) must be clear and unequivocal, (2) must be set forth in the title orheading of any pleading containing the demand, (3) must state that the defendant "demands a speedy trial," and (4) in thebody of the pleading, must make explicit reference to the speedy trial statute. See People v. Meyer, 294 Ill. App. 3d 954,956, 691 N.E.2d 1191, 1192 (1998).

"The purpose of *** section 103-5(b) is to secure a defendant's speedy trial guaranty, not to provide the defendantwith a tactical weapon against prosecution. Because the demand for speedy trial is significant, 'courts should nottolerate conduct by defendants that smack [sic] of efforts to hide or bury their intent to invoke the speedy trialprovisions of section 103-5(b) of the Code.'" People v. Dunskus, 282 Ill. App. 3d 912, 918, 668 N.E.2d 1138, 1142-43(1996), quoting People v. Ground, 257 Ill. App. 3d 956, 959, 629 N.E.2d 783 (1994), cited by People v. Staten, 159Ill. 2d 419, 422, 639 N.E.2d 550, 553 (1994).

Here, defendant's counsel filed a one-page document with two clear headings in bold type. One was the "ENTRY OFAPPEARANCE" and the other was the "DEMAND FOR SPEEDY JURY TRIAL." We find that this document meets thefirst three criteria for a speedy trial demand, namely, it is clear and unequivocal, is set forth in a heading of the pleading,and states that defendant "demands a speedy trial." See Meyer, 294 Ill. App. 3d at 956, 691 N.E.2d at 1192. Therefore, theonly element of a valid speedy trial demand that is missing here is the explicit reference to the speedy trial statute.

Admittedly, some cases have held that a speedy trial demand was inadequate for failing to specifically meet all four speedy-trial-demand criteria. Those cases are distinguishable from the one here, however, because in those cases, the allegeddemand by defendant smacked of an effort to hide or bury the speedy trial demand by including it within another pleadingor by using unclear language. See Dunskus, 282 Ill. App. 3d 912, 918, 668 N.E.2d 1138, 1143 (1996) (pleading wascaptioned "APPEARANCE" and stated only, "The undersigned, as attorney, enters the appearance of defendant anddemands trial"); People v. Ground, 257 Ill. App. 3d 956, 629 N.E.2d 783 (1994) (pleading was more than one page long,was titled "Entry of Appearance," and included one paragraph in the middle of the document saying that the defendantwanted an immediate trial); People v. Milsap, 261 Ill. App. 3d 827, 635 N.E.2d 1043 (1994) (demand was filed in a sheaf ofpapers entitled "Demand for Final Disposition"); People v. Erickson, 266 Ill. App. 3d 273, 639 N.E.2d 979 (1994) (demandwas at the bottom of an "Appearance" pleading, which included a demand for jury trial, a plea of not guilty, and a demandfor immediate trial).

Two fifth district cases have addressed the issue of the requirements for an effective demand for a speedy trial, but neitherdealt specifically with the limited issue of the necessity to include a reference to the speedy trial statute, section 103-5 of theCode. In People v. Meyer, 294 Ill. App. 3d 954, 956-57, 691 N.E.2d 1191, 1193 (1998), the court mentioned the absence ofa citation to the statute, but there were other more serious failings in the demand: (1) neither the heading nor the body of thedocument clearly demanded a speedy trial and (2) the demand was a part of a multiple pleading. Therefore, Meyer is notparticularly pertinent on this limited point.

The second fifth district case, People v. Baker, 273 Ill. App. 3d 327, 329-30, 652 N.E.2d 858, 861 (1995), is much closer tothis case because the defendant's demand did set forth the words "speedy trial demand" in both the heading and the body ofthe pleading. More importantly, Baker based its holding on this issue on the defendant's failure to refer to the statute, citingPeople v. Ground, 257 Ill. App. 3d 956, 629 N.E.2d 783 (1994), in support of its holding. Baker, 273 Ill. App. 3d at 330,652 N.E.2d at 861. The persuasive power of the Baker holding on this issue is reduced by the fact that Baker also held that,even if the speedy trial demand had been a sufficient one, the 160-day time limit had not expired. See Baker, 273 Ill. App.3d at 331, 652 N.E.2d at 862.

Turning from the fifth district cases to the fourth district case of People v. Ground, 257 Ill. App. 3d 956, 959, 629 N.E.2d783, 785 (1994), Baker's source of authority, we find a case that is specifically based, at least partially, on the defendant'sfailure to include a citation to section 103-5(b). Even the Ground decision, however, does not base its holding entirely onthe absence of the citation to section 103-5(b). Ground was also critical of the demand because it used the words"immediate trial by jury" instead of "demands a speedy trial," a phrase that Ground recognized as a term of art. Ground,257 Ill. App. 3d at 959, 629 N.E.2d at 785. In addition, Ground emphasized the fact that the demand for a speedy trial mustbe set forth in the title or heading of any pleading containing the demand. Ground, 257 Ill. App. 3d at 959, 629 N.E.2d at785.

Although we agree with Ground that the demand should be set forth in the heading and set forth clearly, as it was in thiscase, we do not agree that the absence of a citation to section 103-5(b), standing alone, invalidates an otherwise sufficientdemand. We also note that the fourth district, the source of Ground, may have retreated slightly from its stringentrequirements, in People v. Huff, 308 Ill. App. 3d 1046, 1048, 721 N.E.2d 1219, 1222 (1999). In that case, the court upheldthe dismissal of the charges against the defendant, even though his demand for speedy trial lacked a reference to section103-5(b). Huff, 308 Ill. App. 3d at 1050, 721 N.E.2d at 1222.

Since defendant's speedy trial demand failed only to specify the speedy trial statute but was in all other ways adequate toput the State on notice that he was invoking his right to a speedy trial, we affirm the trial court's order dismissing thecharges against defendant for the failure to bring defendant to trial within 160 days of the filing of his speedy trial demand.

Affirmed.

KUEHN, J., concurs.

JUSTICE WELCH, dissenting:

I see no justification for this court to depart from its holdings on this issue, the most recent of which, the Meyer decision,interpreted the demand for speedy trial in the light of both section 103-5 of the Code (725 ILCS 5/103-5 (West 1998)) andthe Twentieth Judicial Circuit's local court rule 7.04 (20th Judicial Cir. Ct. R. 7.04 (eff. Dec. 12, 1991)).

This court has consistently held that a demand for speedy trial (1) must be clear and unequivocal, (2) must be set forth inthe title or heading of any pleading containing the demand, (3) must state that the defendant "demands a speedy trial," and(4) must make explicit reference, in the body of the pleading, to the speedy trial statute. See People v. Meyer, 294 Ill. App.3d 954, 956, 691 N.E.2d 1191, 1192 (1998); People v. Baker, 273 Ill. App. 3d 327, 329, 652 N.E.2d 858, 860 (1995). Otherdistricts of this court have taken a similar stance. See People v. Dunskus, 282 Ill. App. 3d 912, 668 N.E.2d 1138 (1st Dist.1996); People v. Erickson, 266 Ill. App. 3d 273, 639 N.E.2d 979 (2d Dist. 1994); People v. Ground, 257 Ill. App. 3d 956,629 N.E.2d 783 (4th Dist.1994). The necessity to meet the stringent requirements for a demand for a speedy trial undersection 103-5(b) reflects the court's conviction regarding its purpose:

"The purpose of *** section 103-5(b) is to secure a defendant's speedy trial guaranty, not to provide the defendantwith a tactical weapon against prosecution. Because the demand for speedy trial is significant, 'courts should nottolerate conduct by defendants that smack [sic] of efforts to hide or bury their intent to invoke the speedy trialprovisions of section 103-5(b) of the Code.'" Dunskus, 282 Ill. App. 3d at 918, 668 N.E.2d at 1142-43, quotingPeople v. Ground, 257 Ill. App. 3d 956, 959, 629 N.E.2d 783 (1994), cited by People v. Staten, 159 Ill. 2d 419, 422,639 N.E.2d 550 (1994).

I note that in Staten, our supreme court cited to Ground with approval. Staten, 159 Ill. 2d at 422, 639 N.E.2d at 552.

The majority's mild statement that the fourth district "may have retreated slightly from its stringent requirements" forspeedy trial demands as set forth in Ground, in the recent case of People v. Huff, 308 Ill. App. 3d 1046, 721 N.E.2d 1219(1999), is an understatement. The Huff case involved a preprinted form filing that was captioned "ENTRY OFAPPEARANCE, PLEA OF NOT GUILTY, AND DEMAND FOR SPEEDY TRIAL." In one paragraph, the pleadingdemanded a jury trial "within 120 days from the date he was taken into custody," and in another, it stated, "In the event thatdefendant was not taken into custody," he demanded a jury trial "within 160 days of the date of this [d]emand." Huff, 308Ill. App. 3d at 1048, 721 N.E.2d at 1220. It failed to cite section 103-5(b) anywhere on the form. See Huff, 308 Ill. App. 3dat 1048-49, 721 N.E.2d at 1220-21. It was precisely the type of obfuscatory and confusing "demand" that this court hasrepeatedly found to be inadequate to commence the running of the time in which a defendant had to be brought to trial. Thecircuit court granted defendant Huff's motion to dismiss for lack of a speedy trial, and the fourth district reversed andremanded the cause in an unpublished order, finding that although there was no evidence that trial counsel had intended tomislead either the State or the court, the demand was insufficient because it failed to cite to the speedy trial statute. Thedefendant was again represented by the same attorney on remand. He moved to dismiss the prosecution because trialcounsel provided inadequate assistance by making an inadequate demand for a speedy trial, and the trial court granted themotion to dismiss. See Huff, 308 Ill. App. 3d at 1049, 721 N.E.2d at 1221. On review, the fourth district did an abruptabout-face and decided that the trial court properly dismissed the charges against the defendant despite the fact that attorneyincompetence was not an enumerated ground for the dismissal of a prosecution under section 114-1(a) of the Code ofCriminal Procedure of 1963 (725 ILCS 5/114-1(a) (West 1998)). Huff, 308 Ill. App. 3d at 1050, 721 N.E.2d at 1222. Itstated that it was "uncomfortable" with its prior disposition of the case and chose not to apply the "law of the case" to theappeal. Huff, 308 Ill. App. 3d at 1049-50, 721 N.E.2d at 1221-22. Justice Steigmann filed a blistering dissent, stating that hedoubted that there ever had been such a case as the one under consideration "[i]n this nation's entire legal history" and thatthe "miscarriage of justice" to which the majority referred was not the trial court's dismissal of the charges againstdefendant Huff but their affirmance of that dismissal. Huff, 308 Ill. App. 3d at 1051, 721 N.E.2d at 1222-23 (Steigmann, J.,dissenting). Like Justice Steigmann, I find that the fourth district's decision in Huff is absolutely inexplicable and far morethan a "slight retreat" from its decision in Ground that the majority in this case considers it to be.

I believe that the July 22, 1997, demand for speedy trial was inadequate to comply with this court's prior interpretations ofthe statute governing speedy trial demands. It was a compound filing, both an entry of appearance and a demand for speedytrial, and defendant failed to explicitly refer to section 103-5(b). It was thus insufficient to constitute a clear andunequivocal speedy trial demand or to begin the running of the 160-day time period in which defendant had to be brought totrial. The grant of his motion to dismiss was improper and should be reversed for failure to comply with section 103-5(a).

Moreover, defendant, as in the Meyer case, was prosecuted in the Twentieth Judicial Circuit. Local rule 7.04 of the rules ofpractice for the Twentieth Judicial Circuit provides as follows:

"All demands for speedy trial shall be in writing and captioned 'Demand for Immediate Trial'[] or 'Demand forImmediate Jury Trial[,]'[] shall include the cause number[,] and shall be signed by the defendant or the defendant'sattorney. The demand shall be filed with the Circuit Clerk and served upon the State's Attorney." 20th Judicial Cir.Ct. R. 7.04 (eff. Dec. 12, 1991).

In Meyer, this court found, "Local rule 7.04 provides an expedient means for ensuring the proper functioning of thestatutory speedy trial provision of section 103-5(b) and is less demanding than the law as established in Ground. It istherefore a proper exercise of the circuit court's powers to promulgate rules not inconsistent with the law." Meyer, 294 Ill.App. 3d at 957, 691 N.E.2d at 1193.

Defendant's filing contained both a caption indicating an entry of appearance and a subcaption, which read "Demand forSpeedy Jury Trial," rather than "demand for immediate trial" or "demand for immediate jury trial." It was thus inadequateunder rule 7.04 of the Twentieth Judicial Circuit, as well as the Code, precluding the grant of a motion to dismiss on speedytrial grounds.

I believe that the dismissal of defendant's prosecution on speedy trial grounds should be reversed and that this cause shouldbe remanded to the circuit court for further proceedings.