eople v. Lilly, 2016 IL App (3d) 140286 (April). Episode 173 (Duration 7:44)

What happens when defendant demands a trial within 120 days but continues to file motions?

Although, defendant was adamant about wanting his 120 days, he also was pretty persistent with his pro semotion filing.

Speedy Trial Right

“For purposes of a speedy-trial question, a delay is charged to [a defendant] where his act in fact causes or contributes to the delay.”

Further, our supreme court has held that where a defense attorney requests or agrees to a continuance on behalf of a defendant, the resulting delay is attributable to the defendant even if the defendant did not agree with the continuance.

See 725 ILCS 5/103-5(a).

Facts

Here a new public defender was appointed to represent defendant and he simply could not be ready for trial on the date that already had been set. Where a defendant fails to “promptly repudiate an attorney's unauthorized act upon receiving knowledge of the same, the defendant effectively ratifies the act.” Further, “an agreed continuance tolls the speedy trial period *** .” “[A]n express agreement to a continuance on the record is an affirmative act attributable to the defendant.”).

Defendant failed to promptly repudiate defense counsel's actions.

Indeed, defendant responded that it was “fine” when the trial court told defendant that the motion for bond reduction would be heard the following week.

Holding

Although defendant was saying he wanted his 120 he was still agreeing to continuances and requesting bond reduction hearings; these dates were all attributed to him.

Any type of motion filed by defendant which eliminates the possibility that the case could immediately be set for a trial also constitutes an affirmative act of delay attributable to defendant. As defendant's motion needed to be resolved, it eliminated the possibility that the case could immediately proceed to trial.

Further, the court could not construe defendant's subsequent statement that he wanted to “use [his] 120” as an objection to the continuance.

How To Correctly Invoke a Speedy Demand

Section 103-5(a) places the responsibility on a defendant to take affirmative action when he becomes aware that his trial is being delayed by objecting to the delay via a written demand for trial or an oral demand for trial on the record in order to prevent the speedy trial clock from tolling.

“Defendant's contention illustrates what the Cordell court sought to prevent, the use of section 103-5(a), not as a shield to protect defendant's right to a speedy trial, but as a sword to defeat his conviction.”