                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Falletti, 2012 IL App (4th) 120107




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v.
Caption                    BRYAN C. FALLETTI, Defendant-Appellee.



District & No.             Fourth District
                           Docket No. 4-12-0107


Filed                      October 11, 2012


Held                       The discharge of defendant based on the violation of his statutory right
(Note: This syllabus       to be tried within 120 days was affirmed where the State forfeited its
constitutes no part of     arguments that defendant did not object to the delay that resulted in the
the opinion of the court   violation.
but has been prepared
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Vermilion County, No. 11-CF-456; the
Review                     Hon. Nancy S. Fahey, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Randall Brinegar, State’s Attorney, of Danville (Patrick Delfino, Robert
Appeal                     J. Biderman, and John E. Teefey, all of State’s Attorneys Appellate
                           Prosecutor’s Office, of counsel), for the People.

                           Michael J. Pelletier, Karen Munoz, and Allen H. Andrews, all of State
                           Appellate Defender’s Office, of Springfield, for appellee.


Panel                      JUSTICE APPLETON delivered the judgment of the court, with opinion.
                           Justices Steigmann and Knecht concurred in the judgment and opinion.



                                            OPINION

¶1          The State appeals from an order discharging defendant, Bryan C. Falletti, for violation
        of his statutory right to be tried within 120 days. See 725 ILCS 5/103-5(d) (West 2010). We
        decline to consider the arguments that the State makes in this appeal, because it does not
        appear that the State made these arguments in the trial court. Therefore, we affirm the trial
        court’s judgment.

¶2                                         I. BACKGROUND
¶3          According to a notation at the bottom of the information, the police arrested defendant
        on July 28, 2011. The State charged him, in Vermilion County case No. 11-CF-456, with
        three counts: unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West
        2010)), reckless discharge of a firearm (720 ILCS 5/24-1.5 (West 2010)), and unlawful
        possession of a weapon by a felon with a previous conviction of unlawful possession of a
        weapon by a felon (720 ILCS 5/24-1.1(a) (West 2010)).
¶4          In a hearing on August 25, 2011, the trial court scheduled defendant’s trial for October
        7, 2011.
¶5          On October 7, 2011, the trial court held a joint hearing in this case as well as in three
        other criminal cases pending against defendant: Vermilion County case Nos. 10-CF-268, 11-
        CF-10, and 11-CF-211. (Defendant was in custody in the present case but not in the other
        three cases.) Michael Merlie represented defendant in the present case, and Baku Patel
        represented him in the other three cases, but in the hearing of October 7, 2011, Kavita Uppal
        stood in for Patel.
¶6          The trial court noted that, in Vermilion County case Nos. 10-CF-268, 11-CF-10, and 11-
        CF-211, defendant had moved for a fitness evaluation and the court had granted the motion.
        The court asked Merlie:
                “THE COURT: *** But there has been no such order entered in 11-CF-456, Mr.
            Merlie?

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                MR. MERLIE: Your Honor, my client has instructed me he’s ready for trial and
           wishes to proceed.”
¶7         The prosecutor, Sandra L. Lawlyes, argued that defendant could not raise an issue of
       fitness in Vermilion County case Nos. 10-CF-268, 11-CF-10, and 11-CF-211 and at the same
       time, in the present case, proceed immediately to trial while the issue of fitness was still
       unresolved. According to Lawlyes, defendant had to either withdraw the issue of fitness from
       the other three cases or, in the present case, accept a delay, attributable to him, until the
       results of the fitness evaluation were forthcoming.
¶8         Merlie responded: “Your Honor, I’m not waiving any right to–or I would object to the
       State’s analysis. It’s not my motion for fitness. As I indicated, we’re ready for trial on his
       case. I don’t think Mr. Falletti should stand for any–or he should be charged with any delays
       in my case. Wish to reserve–preserve that record–or that for the record, Your Honor.”
¶9         The trial court said:
                “THE COURT: If there is an issue of fitness in three other cases that are older cases,
           Mr. Falletti’s now in custody on a case and wanting to go to trial immediately on that
           case, and I think that he can’t pursue a fitness issue which I’m presuming was filed by
           defense counsel.
                MS. UPPAL: It was filed by Mr. Patel, Your Honor, and then–but it was thereafter
           ordered by Judge Anderson.
                THE COURT: All right. Then that’s an order that would be invoked and cover any
           pending criminal case.”
¶ 10       Therefore the court ruled: “[O]ver the defense objection then in 11 CF 456, that case as
       to Mr. Falletti will also have to be continued for the fitness evaluation and the fitness issue
       to be resolved.”
¶ 11       Lawlyes then suggested January 9, 2012, as the new date of the trial. The trial court
       continued the trial until that date.
¶ 12       On January 6, 2012, Robert E. McIntire, who had been substituted for Merlie as defense
       counsel, filed a motion to discharge defendant pursuant to the speedy-trial statute (725 ILCS
       5/103-5(d) (West 2010)), observing that more than 120 days had passed since defendant was
       taken into custody.
¶ 13       On January 9, 2012, in a status hearing in case Nos. 10-CF-268, 11-CF-10, and 11-CF-
       211, Patel informed the trial court that a fitness report was completed on December 31, 2011,
       and that the report concluded that defendant was fit to stand trial. Patel and Lawlyes
       stipulated to defendant’s fitness, and the court made a finding of fitness.
¶ 14       On January 13, 2012, in the present case, the trial court held a hearing on defendant’s
       motion for discharge. In the hearing, Lawlyes argued:
           “[I]t’s our position, Judge, that you can’t have a motion for fitness in one case and
           require the State to proceed in the one case that you haven’t filed it in.
                If there’s an issue as to fitness, it needs to be determined in all cases; and I believe
           it would be plain error to proceed if there is an issue and, for those reasons, that it would
           toll the term as to Mr. Falletti in the in-custody case.

                                                 -3-
               THE COURT: And you have case law that’s going to support what you’re saying?
               MS. LAWLYES: I certainly hope so, Judge.
               THE COURT: All right. So the case law to be submitted by Tuesday–that’s January
           17–at 4:30. And then I’ll make a decision before the end of the week.”
¶ 15       The record does not appear to contain any memorandum of law by the State or any copy
       of case law.
¶ 16       On January 18, 2012, the trial court granted defendant’s motion for discharge.
¶ 17       This appeal followed.

¶ 18                                         II. ANALYSIS
¶ 19        The State makes two arguments on appeal. First, the State argues that by merely saying,
       in the hearing of October 7, 2011, that defendant was “ready for trial” and that he “wishe[d]
       to proceed,” Merlie failed to object to the proposed delay by “making a written demand for
       trial or an oral demand for trial on the record.” 725 ILCS 5/103-5(a) (West 2010). See People
       v. Murray, 379 Ill. App. 3d 153, 161 (2008). Second, the State argues that Merlie failed to
       make a demand for trial after the State proposed a continuation until January 9, 2012. See
       People v. Cordell, 223 Ill. 2d 380, 391-92 (2006).
¶ 20        Defendant maintains that because the State made neither of those arguments in the trial
       court, the State has forfeited those arguments. See People v. Holloway, 86 Ill. 2d 78, 91
       (1981). The State offers no response to this contention of forfeiture. From our review of the
       record, it appears that the only argument the State made in the trial court was that because
       defense counsel in three other cases had requested a fitness evaluation of defendant, the
       present case could be delayed until the fitness evaluation was completed and that the delay
       would be attributable to defendant. That argument is different from the arguments the State
       makes on appeal. It follows that the State has forfeited the arguments it makes on appeal and
       that we should not consider them. See People v. Hall, 2011 IL App (2d) 100262, ¶ 19.
¶ 21        As for the argument that the State made in the trial court, the State does not repeat that
       argument on appeal; hence, that argument is effectively abandoned. See Ill. S. Ct. R.
       341(h)(7) (eff. July 1, 2008) (“[p]oints not argued are waived,” i.e., forfeited); Ill. S. Ct. R.
       612(i) (eff. Sept. 1, 2006) (Rule 341 governs criminal appeals with regard to the contents of
       briefs).

¶ 22                                   III. CONCLUSION
¶ 23       For the foregoing reasons, we affirm the trial court’s judgment.

¶ 24       Affirmed.




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