                               No. 2-08-0509   Filed: 5-12-10
______________________________________________________________________________

                                              IN THE

                               APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Winnebago County.
                                       )
      Plaintiff-Appellant,             )
                                       )
v.                                     ) Nos. 06--CF--4956
                                       )       06--CF--4957
                                       )
MAHOGANY T. BONDS,                     ) Honorable
                                       ) John R. Truitt,
      Defendant-Appellee.              ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE HUTCHINSON delivered the opinion of the court:

       The State appeals the trial court's order dismissing indictments filed against Mahogany T.

Bonds for the State's violation of her right to a speedy trial under sections 103--5(b) and (c) of the

Code of Criminal Procedure of 1963 (the speedy-trial statute) (725 ILCS 5/103--5(b), (c) (West

2006)). We determine that a written demand filed with the clerk of the court but not provided to the

State was insufficient to provide notice under section 103--5(b) when the only indication of notice

to the State was an oral, in-court statement from Bonds' attorney that he "believed" he would file a

demand. We further determine that the trial court properly allowed an extension of time for DNA

testing under section 103--5(c), though it properly attributed that delay to the State. Therefore,

because the trial court discharged Bonds before the speedy-trial period had run, we reverse and

remand for further proceedings.
No. 2--08--0509


                                       I. BACKGROUND

       On December 15, 2006, Bonds was indicted on charges of aggravated battery (720 ILCS

5/12--4(a) (West 2006)) and mob action (720 ILCS 5/25--1(d) (West 2006)). The charges alleged

that Bonds and three other women hit a fourth woman with glass objects, causing injury. On

February 8, 2007, Bonds was released on bond without making a written speedy-trial demand.

       On August 15, 2007, Bonds appeared for a status hearing, and trial was set for November 13,

2007. The following colloquy then occurred:

               "MR. LIGHT [defense counsel]: I can say this: I believe on behalf of Mahogany I will

       be filing today or tomorrow a demand for the benefit of my client.

               THE COURT: A demand? I'm sorry.

               MR. LIGHT: A speedy trial demand.

               THE COURT: Okay."

On August 16, 2007, a written speedy-trial demand was filed, and the court noted the demand in a

docket entry, but Bonds did not provide the demand to the State.

       On November 8, 2007, the trial court continued the trial on the State's motion without

objection from Bonds. At the hearing, Bonds' counsel indicated, in the presence of the State, that

he did not recall filing a speedy-trial demand. Bonds' counsel was then corrected on that matter by

counsel for a codefendant. The court also allowed joinder of the codefendants and granted a motion

requiring them to submit DNA samples. The DNA motion arose because a codefendant, Jeri

Malone, indicated the intent to raise self-defense based on the presence of blood on a knife found

in the victim's purse; she believed the blood would prove to be from one of the codefendants. The




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State told the court: "Obviously--I think it would be relevant to perhaps all of them if it's a co-

defendant's blood on the knife versus the victims [sic]." Trial was set for January 22, 2008.

       On January 2, 2008, a status hearing was held. The State informed the court that it had

negotiated a plea agreement with Jeri Malone. The State also told the court that it had not yet sent

samples for DNA testing, and it made an oral motion to continue without any mention of section

103--5(c). Bonds objected, noted the previous speedy-trial demand, and asked for a trial date to

preserve the speedy-trial right. The State acknowledged that it knew of the previous trial demand,

stating: "The speedy trial demand was actually only recently filed *** I believe on the last court

date." The court granted the motion over Bonds' objection.

       On February 28, 2008, the State filed a written motion to continue under section 103--5(c),

alleging that DNA test results were not yet available. By that time, Jeri Malone was no longer a

codefendant in the case. The motion provided a time line as to when samples were obtained and

sent, but did not make any specific allegations about how they were material to the case except to

state that there were reasonable grounds to believe that results of DNA testing material to the case

might be obtained at a later date. At a hearing on the matter, the State said that the lab reported in

early February that the normal processing time was approximately three months, but the State added

that it could have the results by April 7, 2008, should the court grant a continuance. The State

suggested setting trial for April 21, 2008, to allow the defense time to go over the DNA results after

they came in. Bonds objected and asked for the earliest possible trial date in order to preserve the

speedy-trial right. The court granted the motion over Bonds' objection. When discussing a trial date

for April, Bonds requested April 7, but the court set the date for April 21. Bonds did not present any




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evidence or argument to dispute the materiality of the DNA evidence or to show that the State did

not act with due diligence.

       On April 15, 2008, Bonds filed a motion to dismiss, alleging that the State failed to bring her

to trial within the time required by the speedy-trial statute. On April 17, 2008, a hearing was held,

and the State asked to continue because a witness was out of town for the month. There was no

mention of section 103--5(c), and no written motion was filed. The court expressed concerns about

the speedy-trial issue, stated that it would need to look at transcripts of previous hearings to

determine the matter, and granted the State's motion to continue over Bonds' objection, with a

specific finding that the delay would be attributable to State. Trial was set for June 2, 2008.

       On May 8, 2008, a hearing was held on the speedy-trial issue. The trial court found that the

demand filed on August 16, 2007, was effective based on the August 15, 2007, in-court statements

of Bonds' attorney. The court found that the State exercised due diligence such that it was entitled

to additional time for DNA testing, but the court did not make specific findings about whether the

evidence was material to the case. The court then found that the running of the time was not tolled

and that the State did not get an automatic 120 extra days. Instead, the court determined that,

because the State offered April 7, 2008, as the date that DNA results would be available, it had 39

additional days. The court then determined that the June 2, 2008, trial date fell outside of the time

allowed to bring Bonds to trial. Thus, the court granted the motion to dismiss. The State appeals

under Supreme Court Rule 604(a)(1) (210 Ill. 2d R. 604(a)(1)).

                                          II. ANALYSIS

                A. August 16, 2007--January 2, 2008: The Speedy-Trial Demand




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       The State first contends that Bonds' speedy-trial demand was ineffective because it was not

served on the State's Attorney and the statements by Bonds' attorney on August 15, 2007, were not

sufficient to provide notice of the demand.

       "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)." People v. Staten, 159 Ill. 2d 419, 426 (1994).

A criminal defendant in Illinois also has a statutory right to a speedy trial. 725 ILCS 5/103--5 (West

2006). The speedy-trial statute enforces the constitutional right to a speedy trial and its protections

are to be liberally construed in favor of the defendant. People v. Buford, 374 Ill. App. 3d 369, 372

(2007). Our supreme court has held that "the statutory right to a speedy trial is not the precise

equivalent of the constitutional right." Staten, 159 Ill. 2d at 426. Therefore, "[p]roof of a violation

of the statutory right requires only that the defendant has not been tried within the period set by

statute and that defendant has not caused or contributed to the delays." Staten, 159 Ill. 2d at 426.

       We review the trial court's ultimate determinations for an abuse of discretion. Buford, 374

Ill. App. 3d at 372. On a legal question, however, the standard of review is de novo. People v. King,

366 Ill. App. 3d 552, 554 (2006). Here, the issue of whether the demand was effective does not

depend on the trial court's discretion. Instead, the question is whether the August 15, 2007, in-court

statements by Bonds' counsel put the State on notice of the demand as a matter of law. Accordingly,

we review the issue de novo. See People v. Dockery, 313 Ill. App. 3d 684, 685 (2000).

       Section 103--5(a) of the speedy-trial statute provides an automatic 120-day speedy-trial right

for a person held in custody on the pending charge and does not require the person to file a demand

to exercise that right. 725 ILCS 5/103--5(a) (West 2006). Section 103--5(b) of the speedy-trial

statute contains a 160-day speedy-trial right for a person released on bond or recognizance, and the



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No. 2--08--0509


period begins to run only when the accused files a written speedy-trial demand. 725 ILCS

5/103--5(b) (West 2006).

        Section 103--5(b) does not specifically require the defendant to serve the written demand on

the State. However, interpreting an earlier version of section 103--5(b) that did not specify the form

of the demand, our supreme court held that, although the statute contains no explicit requirement of

notice, the term "demand" itself implies that the defendant's stated desire to be tried within 160 days

must be conveyed to those persons who are in a position to fulfill that desire. People v. Jones, 84

Ill. 2d 162, 167 (1981). Thus, to be effective, the demand must be "communicated" to the State.

Jones, 84 Ill. 2d at 167.

        Section 103--5(b) is satisfied when the State has actual notice of the demand. For example,

in People v. Moore, 99 Ill. App. 3d 664, 667 (1981), when defense counsel answered ready for trial

in the State's presence and the court specifically stated that a speedy-trial demand had been made,

the demand was sufficient. See also People v. Lendabarker, 215 Ill. App. 3d 540, 552 (1991)

(holding that the State was on notice because notice was filed with the court clerk and mailed to the

State's Attorney); People v. Snyder, 32 Ill. App. 3d 1003, 1004 (1975) (holding that the State had

notice because defendant orally requested a speedy trial at a hearing where the State was present and

the demand was entered on the trial court's docket).

        Conversely, in Jones, a written demand was filed with the clerk of the court, but notice of that

demand was never communicated to the State. There, our supreme court held that the mere filing

of the demand and entry of it on the docket sheet did not put the State on constructive notice. Jones,

84 Ill. 2d at 169. The Jones court noted that "[t]o permit a defendant to invoke his statutory right to

a speedy trial without notifying the prosecution would allow him to exploit the possibility that the



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No. 2--08--0509


State will unwittingly fail to bring him to trial within the prescribed period." Jones, 84 Ill. 2d at 168.

Likewise, in People v. Hamilton, 65 Ill. App. 3d 261, 263 (1978), this court held that a written

demand filed with the court must be accompanied by affirmative conduct by the defendant that

clearly and unequivocally puts the court and the State on notice that the defendant is demanding trial.

        Here, Bonds did not provide a copy of the speedy-trial demand to the State, and the record

does not support the trial court's conclusion that the State had actual notice of the demand when it

was filed on August 16, 2007. The day before the demand was filed, Bonds' counsel, in the presence

of the State, informed the court that he "believed" he would be filing a demand within the next two

days. However, he did not definitively state that he would actually do so. Then, when the demand

was filed, Bonds' counsel did not give notice to the State. Thus, there was no affirmative conduct

that clearly and unequivocally put the State on notice that Bonds had demanded trial. Our conclusion

that there was no affirmative conduct that put the State on notice is further supported by the conduct

of Bonds' counsel on November 8, 2007, when he apparently had forgotten that a demand had even

been filed, expressing surprise when reminded of it. In light of the fact that Bonds' own counsel was

unaware of the demand, we cannot conclude that the State was aware of it before November 8, 2007.

        At the November 8, 2007, hearing, the demand was referenced in the presence of the State.

Thus, as of November 8, 2007, the State had actual notice of the demand. The demand became

effective at that time. That same day, Bonds agreed to the State's request for a continuance, making

the delay between November 8, 2007, and January 2, 2008, attributable to her. People v. Woodrum,

223 Ill. 2d 286, 299 (2006). Thus, the time through January 2, 2008, is attributable to Bonds, and,

even if the remaining time were attributed to the State, the June 2, 2008, trial date fell within the




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No. 2--08--0509


160-day period at 152 days. Accordingly, the trial court erred by discharging Bonds, and we reverse

and remand for further proceedings.

           B. January 2, 2008--April 7, 2008: Time Extension Under Section 103--5(c)

        Because the trial court prematurely discharged Bonds, we need not discuss the State's

remaining arguments. However, in the interest of judicial economy, we address the issues to assist

the court and the parties on remand in determining the time left to bring Bonds to trial. See People

v. Burns, 337 Ill. App. 3d 224, 228 (2003), rev'd on other grounds, 209 Ill. 2d 551 (2004). The State

contends that, under section 103--5(c), the trial court properly granted an extension of time for it to

obtain DNA evidence. The State further argues that the extension of time tolled the running of the

speedy-trial statute period because that extension of time was attributable to Bonds. Bonds argues

that the extension was an abuse of discretion because the DNA evidence was not material to the case

and the State did not act with due diligence. She also argues that, even if the continuance was

proper, the time was attributable to the State. We determine that the trial court did not abuse its

discretion when it granted the continuance under section 103--5(c), but that the time was properly

attributed to the State.

        In 1990, the legislature amended the speedy-trial statute to accommodate the use of DNA

evidence that might otherwise be lost to a speedy-trial deadline due to the time demands of DNA

testing. People v. Swanson, 322 Ill. App. 3d 339, 342 (2001), citing Pub. Act 86--1210, eff. August

30, 1990; see 725 ILCS 5/103--5(c) (West 2006). Thus, section 103--5(c) provides:

                "If the court determines that the State has exercised without success due diligence to

        obtain evidence material to the case and that there are reasonable grounds to believe that such

        evidence may be obtained at a later day the court may continue the cause on application of



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       the State for not more than an additional 60 days. If the court determines that the State has

       exercised without success due diligence to obtain results of DNA testing that is material to

       the case and that there are reasonable grounds to believe that such results may be obtained

       at a later day, the court may continue the cause on application of the State for not more than

       an additional 120 days." 725 ILCS 5/103--5(c) (West 2006).

       Section 103--5(c) allows an extension, up to 120 days, to bring a defendant to trial if the trial

court finds that the State has exercised due diligence in obtaining the DNA evidence and that the

results of the DNA testing are material to the case. Swanson, 322 Ill. App. 3d at 342, citing 725

ILCS 5/103--5(c) (West 1998). "[S]ection 103--5(c) makes it incumbent upon the State to apply for

such a continuance, and the length of any extension up to the maximum necessarily depends upon

the State's request." People v. Johnson, 323 Ill. App. 3d 284, 289 (2001).

       "A reviewing court will not overturn a trial court's ruling on due diligence unless it amounts

to a clear abuse of discretion." Swanson, 322 Ill. App. 3d at 342. "Whether the State has exercised

due diligence is a question that must be determined on a case-by-case basis after careful review of

the particular circumstances presented." Swanson, 322 Ill. App. 3d at 342. "The State bears the

burden of proof on the question of due diligence." Swanson, 322 Ill. App. 3d at 342.

       "Whether the trial court abused its discretion when it determined the exercise of due diligence

is a question reviewed by an examination of what information the court had before it when it made

its finding." People v. Battles, 311 Ill. App. 3d 991, 1003 (2000). Thus, when a defendant

challenges the trial court's grant of a continuance under section 103--5(c), we examine the record as

it existed at the time of the motion. Battles, 311 Ill. App. 3d at 1003, citing People v. Hughes, 274

Ill. App. 3d 107, 111 (1995).



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        The trial court found that the State exercised due diligence to obtain evidence material to the

case. The record shows that the State requested the DNA evidence in a timely fashion and sought

to have the process expedited. The State also requested only the amount of time necessary to

complete the testing. Thus, the State's due diligence was evident.

        With respect to materiality, although Jeri Malone had been dismissed from the action,

evidence that a knife in the victim's purse had blood on it from another person was material to the

case. At that point, any defendant could argue that the source of the blood was responsible for

injuries to the victim, or she could argue self-defense based on the evidence that the victim had used

the knife on the source of the blood. Although the court failed to make specific findings, at the time

of the motion, Bonds did not dispute that the State acted with due diligence and that the evidence

was material to the case. Thus, at the time of the motion--the relevant time for the inquiry--the court

did not abuse its discretion by granting additional time under section 103--5(c).

        The State contends that the time the case was continued under section 103--5(c) should toll

the running of the speedy-trial period. We initially observe that there is a lack of Illinois case law

specifically addressing how additional days should be counted under section 103--5(c), and the

statute is silent on the matter.

        The trial court granted the State the number of days between the date of its motion and the

date on which the DNA evidence would be available. That number of days was then added to the

160-day period under section 103--5(b). Relying on the Fifth District case of People v. Workman,

368 Ill. App. 3d 778, 785-86 (2006), where the court used the word "tolled" when discussing section

103--5(c), the State argues that the period is not attributable to it and is instead charged to the

defendant.



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No. 2--08--0509


       Contrary to the State's contentions, the speedy-trial statute does not provide that the time

given to obtain DNA results "tolls" the speedy-trial period such that the time would be attributable

to the defendant. The primary task in the exercise of statutory construction is to ascertain and

effectuate the intent of the legislature. People v. Skillom, 361 Ill. App. 3d 901, 908 (2005). Our

inquiry begins with the language of the statute, which is the best indicator of legislative intent, and

when the plain language of the statute is clear and unambiguous, we have no reason to resort to aids

of construction. People v. Pullen, 192 Ill. 2d 36, 42 (2000); Skillom, 361 Ill. App. 3d at 908-09,

citing Village of Mundelein v. Franco, 317 Ill. App. 3d 512, 517 (2000). Under the plain language

of the speedy-trial statute, the State has a limited number of days in which to bring a defendant to

trial, with section 103--5(c) allowing for an additional number of days under certain circumstances.

See People v. Colson, 339 Ill. App. 3d 1039, 1041 (2003), citing 725 ILCS 5/103--5(f) (West 2000).

Nothing in section 103--5(c) mentions "tolling" the statute for DNA testing. Instead, under the plain

language of section 103--5(b), the clock runs against the State, except when delay is occasioned by

the defendant. See 725 ILCS 5/103--5(b) (West 2006).

       Here, there was no application under section 103--5(c) at the January 2, 2008, hearing.

Instead, the State made an oral motion to continue without providing any section 103--5(c) request

or providing any specifics about materiality of the evidence or due diligence. Bonds objected and

demanded trial. Thus, the delay between January 2, 2008, and February 28, 2008, was attributable

to the State. On February 28, the State presented a section 103--5(c) motion that specifically asked

for an extension with April 7, 2008, as the date DNA evidence would be available. The trial court

granted the motion, but set trial for April 21, 2008, over Bonds' objection, trial demand, and alternate

request for an April 7 date.



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        Under section 103--5(c), the speedy-trial period was extended from February 28, 2008, to

April 7, 2008, which was 39 days. When that is added to the 160 days the State had under section

103--5(b), the State had a total of 199 days to bring Bonds to trial. As of April 15, 2008, when

Bonds moved to discharge, 104 days were attributable to the State.

                                   C. Bonds' Motion to Discharge

        The State next argues that the time required to address Bonds' motion to discharge was a

delay attributable to her. Further, the State seeks to attribute the time to May 8, 2008, when the trial

court ruled on the matter, despite the fact that it successfully obtained a continuance of trial on April

17, 2008.

        "Section 103--5(f) provides that '[d]elay occasioned by the defendant shall temporarily

suspend for the time of the delay the period within which a person shall be tried.' " People v.

Patterson, 392 Ill. App. 3d 461, 467 (2009), quoting 725 ILCS 5/103--5(f) (West 2004). Thus, a

defendant waives the right to a speedy trial under section 103--5(b) where, by his or her affirmative

act, he or she contributes to an actual delay of the trial or expressly agrees to the continuance on the

record. People v. Cunningham, 77 Ill. App. 3d 949, 952 (1979). " 'A defendant is considered to

have occasioned a delay when he requests a continuance, agrees to a continuance, or when his

actions otherwise cause or contribute to the delay.' " Patterson, 392 Ill. App. 3d at 467, quoting

People v. Hatch, 110 Ill. App. 3d 531, 537 (1982); see People v. Ladd, 185 Ill. 2d 602, 609 (1999)

(holding defendant's motion to discharge that did not delay proceedings was not chargeable to

defendant, while a specific request for a continuance to research a motion to discharge was attributed

to defendant).




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       Here, at the time of Bonds' April 15, 2008, motion, trial was set for April 21, 2008. Bonds

never sought a continuance or sought to delay the date of trial, and the State made no effort to set

trial in the intervening period; thus, there was no actual delay. See People v. McKinney, 59 Ill. App.

3d 536, 541-42 (1978). Instead, at the April 17, 2008, hearing on the motion, trial was delayed at

the State's request and over Bonds' objection. At that point, trial was delayed by the actions of the

State. As of April 17, 2008, 106 days were attributable to the State.

                            D. The State's April 17, 2008, Continuance

       The State argues that the time from April 17, 2008, until the June 2, 2008, trial date

constituted another extension of time under section 103--5(c). The State argues that it was entitled

to a new section 103--5(c) continuance or that the application of that section can be "incremental"

such that, once the trial court grants a period of time under section 103--5(c), it can continue to

incrementally add time. However, the State's argument ignores that it never asked for additional

time under section 103--5(c) on April 17, 2008, and the court specifically found that the time was

charged to the State.

       As previously discussed, section 103--5(c) makes it incumbent upon the State to apply for

a continuance, and the length of any extension necessarily depends upon the State's request.

Johnson, 323 Ill. App. 3d at 289. The State must also show that it exercised due diligence to obtain

material evidence. People v. Toolate, 62 Ill. App. 3d 895, 898 (1978). On the other hand, section

114--4(c)(2) of the Code of Criminal Procedure of 1963 (725 ILCS 5/114--4(c)(2) (West 2006))

allows the State to move to continue on the basis that a material witness is unavailable and the

prosecution will be prejudiced by his or her absence. Such a continuance does not extend the

speedy-trial period. Toolate, 62 Ill. App. 3d at 898. In the absence of a specific request under



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section 103--5(c) and of findings made under that section, the motion was not made under section

103--5(c). See Toolate, 62 Ill. App. 3d at 899.

       Here, on April 17, 2008, the State made no mention of section 103--5(c) and did not provide

specific evidence concerning its due diligence or the witness's materiality. Further, the State's

previous extension for purposes of seeking DNA testing had ended. Thus, there was no section

103--5(c) application for the trial court to grant, and no outstanding extension for the trial court to

add time to. In the absence of any specific request from the State under section 103--5(c) and

evidence to show that it was entitled to a continuance under that section, the continuance did not

extend the speedy-trial period. The trial court dismissed the charges on May 8, 2008. At that time,

127 days of the 199-day period had run.

                                         III. CONCLUSION

       The trial court erred when it determined that the August 16, 2007, demand was sufficient,

and it wrongly discharged Bonds before the speedy-trial period had run. Accordingly, the judgment

of the circuit court of Winnebago County is reversed and the cause is remanded for further

proceedings.

       Reversed and remanded.

       McLAREN and BURKE, JJ., concur.




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