
NO. 4-96-0162

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,    )   Appeal from

Plaintiff-Appellee,           )   Circuit Court of

v.                            )   Vermilion County

ERIC ROBERSON,                          )   No. 95CF138

Defendant-Appellant.          )

                                        )   Honorable

                                        )   Thomas J. Fahey,

                                        )   Judge Presiding.

_________________________________________________________________





JUSTICE KNECHT delivered the opinion of the court:

On April 13, 1995, defendant, Eric Roberson, was charged with the offense of possession of a controlled substance with intent to deliver 15 to 100 grams of a substance containing cocaine in violation of section 401(a)(2)(A) of the Illinois Controlled Substances Act.  720 ILCS 570/401(a)(2)(A) (West 1994).  Defendant was tried before a jury on August 22, 1995, and convicted.  He was sentenced to a term of eight years' imprison­ment in the Department of Corrections.  Defendant appeals his conviction, claiming the trial court abused its discretion in denying his motion for discharge for failure to bring him to trial within 120 days from the date he was taken into custody in violation of the speedy trial provision of the Code of Criminal Procedure of 1963 (Code).  725 ILCS 5/103-5 (West 1994).  We agree and reverse in part, vacate in part, and remand with direc­tions.

Defendant was arrested and charged on April 13, 1995, and remained in custody until the date of his trial.  Under the speedy trial provision of the Code, he was re­quired to be brought to trial by August 11, 1995, unless there were delays attribut­able to defendant.  725 ILCS 5/103-5(a) (West 1994).  The record indicates no delays at­trib­ut­able to defendant.  Through a unique set of cir­cum­stanc­es, the trial was delayed past the orig­inal 120 days defen­dant was in custody.

A jury was selected to hear defendant's case on July 17, 1995.  The jury, although chosen, was not sworn that day.  The next scheduled day of trial was July 20.  That morning, As­sis­tant State's Attorney Larry Mills appeared before the court to make an oral motion for "a recess of the trial until Tuesday, July 25th."  In support of his motion, he stated the assigned attorney orig­inal­ly sched­uled to try the case was taken ill sud­denly during the night and hos­pi­talized.  Mills would be tak­ing over the case but was not pre­pared to pro­ceed to trial that morn­ing.  

Defense counsel stated she had no ob­jec­tion but want­ed to make sure the re­cord indicated the delay would not be at­trib­uted to defen­dant.  The trial court granted the continu­ance due to a medical emergen­cy and specifi­cally stat­ed it would not be attrib­uted to either the State or defendant.  The trial court then brought in the jury and informed it of the delay and asked if any member had a diffi­culty re­turning in five days.  No one ex­pressed such a dif­ficulty and the case was con­tinued until July 25.

The case did not proceed to trial on July 25, but there is no explanation on the docket sheet.  On Au­gust 14, 1995, the State filed a motion for mistrial.  Attached to the motion was an affidavit signed by Mills in which he stated the circum­stances surrounding the delay in trial from July 20 to July 25.  He fur­ther stated after the trial was continued to July 25 he contacted the State's witnesses, one of whom was a forensic scientist from the Springfield crime lab, and found out he was unavailable on July 25 due to a prior subpoena for another trial.  Mills then contacted defense counsel, who was unwilling to stipulate to the testimony of the witness.  Mills stated he then informed the trial court of this problem and the July 25 trial date was stricken.  We note the State failed to file a motion under sec­tion 103-5(c) of the Code (725 ILCS 5/103-5(c) (West 1994)) with­in the 120-day time frame.

Mills then stated the trial court was unable to re­schedule the trial within the term of service of the jury previ­ously picked so, on August 14, he moved the trial court to de­clare a mis­tri­al and reset the case for trial on August 21, 1995.

The State's motion was heard on August 14.  The trial court noted the jurors had been picked but not sworn, despite a docket entry to the contrary.  Defense counsel agreed the jurors had not been sworn.  The trial court ordered the docket entry changed to read "Jury selected."  As the jurors were not sworn, the trial court found jeopardy had not attached and there was no need to obtain a mistrial.  The trial court set the case for trial on August 21, 1995.

On August 18, 1995, defense counsel moved for discharge under the speedy trial provisions of the Code.  725 ILCS 5/103-5(a) (West 1994).  The mo­tion al­leged 120 days had expired on August 11, 1995.  The motion was denied after the trial court found the delays were attributable to illness on the part of the prosecutor, the trial court's own vacation of two weeks' duration the following week, and the unavailability of a witness after the trial had been rescheduled.  The jury was discharged after July 25 because in Vermilion County jurors sit for two-week periods and its term was completed.  The jurors were released because they were not sworn.  There was no objection to the release of the jurors by any party.

A jury was picked and sworn on August 21 and defendant was found guilty.  Defendant again raised the issue of a failure to bring him to trial within 120 days in his post-trial motion but it was also denied.  This appeal followed.

When the trial court allowed the State a delay of five days on July 20 due to the illness of the prosecuting attorney, it specifically stated the delay would not be attributed to ei­ther party.  This statement skews the focus of the speedy trial inqui­ry.  Defendant has the right to be tried within 120 days.  The State has no similar right.  Once a determination is made a delay is not attributable to a defendant, no further comment is neces­sary.  To say the delay is also not attributable to the State has the effect of charging the delay to the defendant.  The five-day delay was not attributable to defendant and the 120-day peri­od continued to run.  De­fen­dant was not brought to trial until Au­gust 21 and there were no delays attrib­utable to him.  No ex­pla­nation has been given as to when the State's un­available wit­ness was next avail­able and why the trial could not have been held 
before
 Au­gust 21.  The State has a con­tinuing burden to take the neces­sary steps to bring about a prompt trial.  
People v. Perkins
, 90 Ill. App. 3d 975, 979, 414 N.E.2d 110, 114 (1980).

The right to a speedy trial is guaranteed by the feder­al and Illinois Constitutions.  U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, §8.  These constitutional provi­sions guarantee the right to a speedy trial but do not specify a time­table.  This is provided in section 103-5 of the Code.  The su­preme court has recog­nized a differ­ence in the statutory right to a speedy trial and the con­stitu­tional right.  
People v. Stat­en
, 159 Ill. 2d 419, 426, 639 N.E.2d 550, 554 (1994); 
People v. Gar­rett
, 136 Ill. 2d 318, 323, 555 N.E.2d 353, 356 (1990).  Under consti­tutional anal­ysis, vio­la­tions of a defendant's right to a speedy trial depend on fac­tors such as the length of the delay, the reasons for the delay, the defendant's assertion of the right, and prejudice to the de­fendant caused by the delay.  
Bark­er v. Wingo
, 407 U.S. 514, 530, 33 L. Ed. 2d 101, 116-17, 92 S. Ct. 2182, 2192 (1972).

  		Under section 103-5(a) of the Code, the State is re­quired to bring a defendant to trial within 120 days after being taken into custody without the ne­ces­si­ty of a speedy trial de­mand.  
Garrett
, 136 Ill. 2d at 329, 555 N.E.2d at 358.  Proof of a vio­lation of this statutory right has been held to require only that a defendant was not brought to trial within 120 days and the defendant did not cause or contrib­ute to the delay.  
Staten
, 159 Ill. 2d at 426, 639 N.E.2d at 554; 
People v. Rich­ards
, 81 Ill. 2d 454, 459, 410 N.E.2d 833, 836 (1980).  A defen­dant relying on the statutory right to a speedy trial need not show prejudice result­ing from the delay.  
Staten
, 159 Ill. 2d at 426-27, 639 N.E.2d at 554.

The State does not argue there was delay at­trib­ut­able to de­fendant.  In­stead, the State argues the issue here is con­trolled by the deci­sion in 
People v. Wil­liams
, 59 Ill. 2d 402, 320 N.E.2d 849 (1974).  In 
Williams
 (59 Ill. 2d at 405, 320 N.E.2d at 850), the su­preme court held trial was commenced on the 119th day of the running of the speedy trial statute by "begin­ning the pro­cess" of selection of the jury.  
Thus, ac­cord­ing to the State, defendant's trial for speedy trial pur­poses was com­menced on July 17, well within the 120-day period pre­scribed by statute.

Defendant notes a crucial difference between the facts in 
Williams
 and those presented here.  In 
Williams
, the defendant was tried by the same jury whose selection was begun on day 119.  In this case, however, the jury that was selected within the 120- day period was not sworn and was ultimately dis­missed before defen­dant was tried and another, entirely new jury was selected after the 120-day period had expired.  This was the jury that tried his case.

Defendant relies on the decision in 
Perkins
.  In 
Perkins
, a jury veni­re was assem­bled within the 120-day statu­tory speedy trial peri­od.  The veni­re was sworn as pro­spective jurors.  Be­fore the 
voir
 
dire
 exami­nation was com­menced, the trial court discov­ered all of the veni­re mem­bers were on their second week of jury ser­vice and would be inconve­nienced by a requirement to return for a third week of duty the next week for a trial expect­ed to last 10 days.  The trial court then dismissed the entire venire and the defendant was later tried before a jury selected from a com­plete­ly new venire after the 120-day period had ex­pired.  
Perkins
, 90 Ill. App. 3d at 977-78, 414 N.E.2d at 112.  The State relied on the supreme court decision in 
Williams
 and argued the swearing of the venire had begun the jury selec­tion process and the trial was begun within the 120-day period.  The first district in 
Perkins
 noted 
Williams
 stood for the proposi­tion the fact jury se­lec­tion is not finished within 120 days is not controlling so long as the selection process has begun within the 120-day peri­od.  
Perkins
, 90 Ill. App. 3d at 977, 414 N.E.2d at 112.  The 
Perkins
 court found the procedure used in that case did not con­stitute the "'beginning of the process'" of jury se­lec­tion as envi­sioned by 
Williams
.  
Perkins
, 90 Ill. App. 3d at 978, 414 N.E.2d at 112.  

No other reported case has been located that deals with the issue before us except for 
People v. Staten
, 236 Ill. App. 3d 1032, 602 N.E.2d 942 (1992), which was reversed in 
Stat­en
 (159 Ill. 2d 419, 639 N.E.2d 550), without the su­preme court deal­ing with the issue of when the jury selection process begins for purposes of the speedy trial provision.  Howev­er, the fifth dis­trict in 
Staten
 found 
Williams
 inapplicable and followed the decision in 
Perkins
, where jury selection was begun within the statutory peri­od but was not completed due to a fail­ure to select a 12-person jury without first exhausting the jury pool.  The trial court excused the jurors selected and reset the trial for the next jury setting, which was beyond the statutory period.  Thus, new jurors were required to be selected to try the defen­dant.  The court in 
Staten
 found the aborted jury selection pro­ceedings did not constitute the beginning of the jury selec­tion process to satisfy the speedy trial statute under 
Williams
.  
Staten
, 236 Ill. App. 3d at 1036, 602 N.E.2d at 945.

 		We agree with the 
Perkins
 court.  The decision in 
Wil­liams
 is inappo­site to a situation where the jury selected within the 120-day statutory speedy trial period is not the jury that ulti­mately tries a defendant.  The court in
 
Perkins
 noted the preju­dice to the defendant due to the actual jury not being se­lected for another 14 months.  We do not have such a long delay here.  It is not necessary to show prejudice for a stat­utory speedy trial violation.  
Staten
, 159 Ill. 2d at 426-27, 639 N.E.2d at 554.  All that is necessary is that trial began beyond the 120-day statutory period through no delay attributed to de­fendant.  
Staten
, 159 Ill. 2d at 426, 639 N.E.2d at 554; 
Rich­ards
, 81 Ill. 2d at 459, 410 N.E.2d at 836.  

Where a jury has been selected but not sworn and is later dismissed and a new jury is selected from an entirely dif­ferent venire, a defendant's trial does not commence for pur­pos­es of statutory speedy trial rights upon the selection of the first jury.  We agree with the court in 
Perkins
 that to hold otherwise would be to countenance a technical evasion of the speedy trial provision.  
Perkins
, 90 Ill. App. 3d at 978, 414 N.E.2d at 112.

Accordingly, we reverse defendant's conviction, vacate the sentence, and remand for entry of an order of discharge under the speedy trial provision.

Reversed in part, vacated in part and cause remanded with directions.

STEIGMANN, P.J., and McCULLOUGH, J., concur.

