People v. Forbes, 2024 IL App (3d) 230152 (August). Episode 1065 (Duration 7:27)

Until the court became aware of defendant’s motion to withdraw the Franks motion and was in a position to reset defendant’s case for trial, the speedy-trial period remained tolled for defendant pending his Franks motion.

Charges

Defendant was arrested on charges of unlawful possession of a controlled substance with intent to deliver (720 ILCS 570/401(c)(2) (West 2022)) and unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2022)).

Gist

The State appeals the La Salle County circuit court’s order granting the motion to dismiss for a speedy-trial violation. The States argues the delays resulting in the postponement of trial were occasioned by defendant. 

Why Trial Judge Granted The Motion

The judge said in part,

“I would agree with you if he came in on the 2nd and asserted it. I’d have had a whole different opinion in line. But when it’s the 28th and somebody knew about it and didn’t do a damn thing, a whole [‘]nother story. You got to get up and move. You got to take aggression. You got to take control of things. *** There’s nothing right on point on this thing, and that’s the sad part about it, but there’s nothing on it.”

• ​​Defendant was arrested on July 20, 2022, and remained in custody throughout the proceedings. 
• On December 28 defense counsel filed a motion to withdraw his Franks Hearing and also made a written demand for speedy trial.
• The next day on the calendar was on February 2 for the the Franks Hearing.
• Judge thought the prosecution should have motioned the file up sooner to get a trial date.

Issue

On appeal, the State challenges the trial court’s determination that the speedy-trial clock restarted when defendant filed his motion to withdraw his Franks motion that included a speedytrial demand. 

Specifically, the State argues that defendant’s speedy-trial clock tolled on October 6, 2022, when the court struck the trial date and set defendant’s Franks motion for hearing. 

Facts

The parties agree that the 78- day period between defendant’s arrest on July 20, 2023, and October 6, 2023, when the Franks hearing was set by the trial court, is attributable to the State for purposes of calculating the speedy trial term. 

Likewise, the parties agree that the speedy-trial term was tolled between October 6, 2023, when the trial court struck the trial date and set defendant’s Franks motion for hearing, and December 28, 2023, the date defendant filed his motion to withdraw his Franks motion and speedy trial demand with the La Salle County circuit court clerk. 

Thus, the parties agree that the speedy-trial term stood at 78 days as of December 28, 2022.

The Dispute is what happens after the defense filed motion to withdraw Frank’s Hearing and the written Demand for Speedy.

The Issue Issue

At issue then is whether the speedy-trial term resumed running upon defendant’s out-ofcourt filing of his “Motion to Withdraw Franks Motion” and speedy-trial demand on December 28, 2022, with the La Salle County circuit court clerk or, alternatively, not until February 2, 2023, the court date when the trial court learned of defendant’s motion to withdraw his Franks motion and reset the matter for trial. 

The Speedy Trial Statute

The State was required under section 103-5(a) to bring him to trial within 120 days, absent delays occasioned by defendant. 

In Illinois, defendants are afforded the statutory right to a speedy trial under section 103-5 of the Code (725 ILCS 5/103-5 (West 2022)). 

Section 103-5(a) outlines the right to a speedy trial for in-custody defendants. It provides, in pertinent part, that

Delays

1. For the purposes of section 103-5(a), a “delay” is “[a]ny action by either party or the trial court that moves the trial date outside of that 120-day window.” People v. Cordell, 223 Ill. 2d 380, 390 (2006).
2. A delay is considered to be occasioned by a defendant when his or her acts cause or contribute to the postponement of trial. People v. Sanchez, 392 Ill. App. 3d 1084, 1094 (2009).
3. “Any delay occasioned by the defendant tolls the speedy-trial period until the expiration of the delay, at which point the statute begins to run again.” People v. Murray, 379 Ill. App. 3d 153, 158 (2008).

Courts have considered various types of actions by a defendant that are considered “delay *** occasioned by the defendant” and thus excluded from the calculation of the 120-day speedytrial term. See People v. Turner, 128 Ill. 2d 540, 550 (1989). Examples of delay attributable to defendant have included…

• Delay resulting from the filing of a motion for a continuance (People v. Gooding, 61 Ill. 2d 298 (1975)),
• Filing of a motion for severance (People v. Grant, 68 Ill. 2d 1 (1977)),
• Filing of a motion for substitution of judge (People v. Spicuzza, 57 Ill. 2d 152 (1974)), and the
• Filing of a motion to suppress evidence (People v. Jones, 104 Ill. 2d 268 (1984)). 
• A delay resulting from the defendant’s filing of a Franks motion is likewise properly attributed to a defendant for speedy trial purposes. People v. Pettis, 2017 IL App (4th) 151006, ¶ 40.

Significantly, delay includes not only the filing of defendant’s motion but also the time associated with processing the motion, including time for the State to respond and for the court to hear and resolve the issues. Cross, 2022 IL 127907, ¶ 21.

Thus, the defendant in Donalson was charged with the extended delay that resulted after he filed a motion to suppress where he otherwise made no attempt to obtain a date for a hearing on his motion to suppress.

See Ladd, 185 Ill. 2d at 608 (“A defendant is generally charged with 12 delay caused by defense motions, and the defendant is responsible for calling up defense motions for hearing and disposition.”). 

Key Finding

As noted earlier, “Delay *** [includes] time for *** the court to hear and resolve the issues.” Cross, 2022 IL 127907, ¶ 21 (citing Jones, 104 Ill. 2d at 280).

Until the court became aware of defendant’s motion to withdraw the Franks motion and was in a position to reset defendant’s case for trial, the speedy-trial period remained tolled for defendant pending his Franks motion.

This Is Not Lilly

For this reason, defendant’s reliance on People v. Lilly, 2016 IL App (3d) 140286, is unavailing. In Lilly, this court acknowledged that a defendant could reinstate the speedy-trial term by withdrawing his pending motion and demanding trial. Id. ¶ 31.

Unlike the procedural posture in Lilly, however, here, defendant’s motion to withdraw remained pending, and his Franks motion was not withdrawn until February 2, 2023, when the court reset the matter for trial after learning of defendant’s withdrawal motion and speedy-trial demand.

Indeed, the prayer for relief in defendant’s motion recognized this procedural posture where he requested, “WHEREFORE, Defendant, JAMES FORBES, prays for an Order granting him leave to withdraw his Franks Motion.”

Lilly does not assist defendant because it merely stands for the proposition that the speedy-trial term recommences once a defendant’s motion is withdrawn, which did not happen here until February 2, 2023. 

Holding

While the speedy-trial clock began running again after February 2, 2023, the February 27, 2023, trial was still within the 120-day limit, as a total of 103 days had run as of February 27, 2023 (78 days as of February 2, 2023, plus 25 days to February 27, 2023).

See Murray, 379 Ill. App. 3d at 158 (when the speedy-trial clock resumes after a delay, periods of custody subject to the 120- day limit are calculated by excluding the first day and including the last). 

Therefore, the court erred in granting defendant’s motion to dismiss because no speedy-trial violation had occurred. 

The judgment of the circuit court of La Salle County is reversed and remanded.

See Also