NO. 4-01-0439

	IN THE APPELLATE COURT

	OF ILLINOIS

	FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,	)	Appeal from

		Plaintiff-Appellee,			)	Circuit Court of

		v.						)	Champaign County

JOHNNY L. COLSON,					)	No. 00CF2106

		Defendant-Appellant.		)	

								)	Honorable

								)	Thomas J. Difanis,5

								)	Judge Presiding.

_________________________________________________________________

		JUSTICE COOK delivered the opinion of the court:

		Defendant, Johnny L. Colson, was convicted by a jury of

committing the offense of aggravated criminal sexual assault (720

ILCS 5/12-14 (West 2000)) and sentenced to 30 years in prison. 

Defendant appeals, arguing that his speedy-trial rights were

violated.  See 725 ILCS 5/103-5 (West 2000).  We affirm. 

		Defendant was arrested on November 27, 2000.  On that

date, defendant had allegedly forced his ex-girlfriend into his

car and then taken her to a secluded location, where he battered

and raped her.  Defendant did not make bond and remained in

custody from the time of his arrest until his trial.

		The State brought defendant to trial on April 12, 2001,

after 135 days of defendant being in custody.  Pursuant to

section 103-5 of the Code of Criminal Procedure of 1963 (speedy-

trial statute), a defendant who remains in custody, as this

defendant did, must be brought to trial within 120 days.  725

ILCS 5/103-5(a) (West 2000).  When the defendant is in custody,

no demand is required to begin the running of the 120-day term.  People v. Johnson, 323 Ill. App. 3d 284, 288, 751 N.E.2d 621, 625 (2001).  If the defendant in custody is not brought to trial

within 120 days, then the defendant must be discharged from

custody.  725 ILCS 5/103-5(d) (West 2000). 

		The speedy-trial statute provides exceptions that

suspend the running of the 120-day term, thereby allowing a

defendant in custody to be brought to trial beyond 120 days.  One

exception is when the defendant himself is responsible for the

delay.  See 725 ILCS 5/103-5(df) (West 2000).  Another exception

allows the State to move for a continuance for up to an addi

tional 120 days: 

		"[i]f 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 ***."  

		725 ILCS 5/103-5(c) (West 2000).  

		In this case, the State asked for, and was granted, a

continuance pursuant to section 103-5(c) to obtain DNA (deoxyri

bonucleic acid) test results.  The grant of a section 103-5(c)

continuance extends the 120-day speedy-trial term to a maximum of

240 days.  The State brought defendant to trial in 135 days,

within the 240-day limit.

		Defendant argues on appeal that the trial court abused

its discretion in granting the continuance because the State made no showing of due diligence as required by the speedy-trial

statute.  The State argues that defendant is himself responsible

for 26 days of the delay because he requested a continuance,

meaning that for purposes of the speedy-trial statute only 109

days accrued and no violation of the statute occurred.  The State

also argues that even if defendant was not responsible for any

delay in bringing the case to trial, the continuance for DNA

testing was properly granted.

		We begin our analysis by addressing the State's argu

ment that defendant is himself responsible for 26 days of delay

because he asked for a continuance.  This requires an extensive

examination of the proceedings in the trial court regarding the

alleged request for continuance. 

		The pretrial was initially set for January 24, 2001. 

The proceedings at the January 24, 2001, hearing follow in their

entirety:

			"[THE COURT]:  2106, Johnny L. Colson.

			[MR. BULLOCK (defendant's counsel)]:  Your 

		Honor, I believe that should be set for motions 

		tomorrow.

			[THE COURT]:  Motions tomorrow, 9:30, in 

		F.  Defendant's in custody."

The docket entry for the January 24, 2001, hearing states as

follows:

			"Appearance of the State's Attorney.  

		Suggestion that the [d]efendant is in custody.  

		Motion by [d]efendant for continuance.  Motion 

		allotted for hearing 1/25/2001 at 9:30 AM 

		in Courtroom F."

		On January 25, 2001, Assistant State's Attorney Eliza

beth Dobson filed a written motion for continuance to obtain DNA

evidence pursuant to section 103-5(c).  The motion contained the

following allegations:

			"1. The defendant in this case is charged 

		with [a]ggravated [c]riminal [s]exual [a]ssault

		(class X felony) and has been in custody since 

		November 27, 2000.

			2.  The defense has indicated a request 

		that the case be continued until the February 

		21, 2001[,] pretrial, on the defendant's motion.    

			3.  The People have no objection to that 

		motion and further request, on the State's 

		motion, that the cause be continued until the 

		March 28, 2001[,] pretrial.  The alleged offense 

		occurred in a vehicle and certain items of 

		evidence from the vehicle, as well as samples 

		from the victim and standards from the defen-

		dant have been forwarded to the Illinois State 

		Police Crime Laboratory in Springfield, 

		Illinois[,] for DNA analysis.  The State's 

		continuance is requested pursuant to 725 ILCS 

		5/103-5(c)."

The affidavit attached to the motion contained similar averments.

		A short hearing was held on January 25, 2001, where the

following exchange occurred:

			"[MR. KENNEDY (prosecutor)]:  Your Honor, 

		this is Ms. Dobson's motion to continue and 

		affidavit.  Ms. Dobson's request in this case 

		is that, since there is lab work, there is 

		DNA work being done, that she is asking in 

		accord with her motion, that the continuance 

		be until March 28th of 2001 and then for the 

		trial setting in the April trial term.

			[MR. BULLOCK]:  I would object.

			[THE COURT]:  All right.  It seems to me 

		that this is a file that we don't want any 

		disarray on.  I prefer to have a hearing on 

		the motion."  (Emphasis added.)

The trial court set the hearing for the next morning on January

26, 2001, when Assistant State's Attorney Dobson would be avail

able.

		At the January 26, 2001, hearing, the following ex

change occurred:

			"[MS. DOBSON]:  I am moving to continue, 

		Your Honor, until the April trial term in 

		this matter.  I have also discussed with 

		counsel the fact that I am going to be un-

		available to try cases in the month of March, 

		as I will be involved in a case being tried 

		out of county.  With regard to [defendant's] 

		matter, the alleged incident occurred in a 

		vehicle.  Samples were taken of what appeared 

		to be hair and body fluid from the vehicle.  

		Samples were sent to the Illinois State Police 

		Crime Laboratory for DNA analysis.  I am re-

		questing this continuance for two months 

		pursuant to 725 ILCS 5/103-5(c), the extended 

		time frames pertaining to DNA analysis.  This 

		defendant has been in custody since November 

		27th of 2000.  That indicates that as of the 

		commencement of the April jury term, April 

		9th, that would be 134 days total, which is 

		within a time for an extended continuance 

		based on DNA reports.  So, that is my request, 

		for a continuance until that time.

			[THE COURT]:  Mr. Bullock.

			[MR. BULLOCK]:  Your Honor, I realize 

		that Ms. Dobson is probably entitled to the 

		continuance.  We would object.  I believe 

		that the 120 days is not yet tolled.  The 

		DNA results are not in.  I realize that if 

		the--waiting for the DNA results requires an 

		extension beyond the 120 days, that the State 

		would be entitled to it.  However, I am not 

		sure that--if the DNA results do come in 

		before the 120 days are up, I don't believe 

		that there is any additional extension that 

		the People are entitled to, if the DNA results 

		are in.  And, so, I would object--I would 

		ask that--I would object to the continuance 

		and ask, if it's going to be continued, that 

		it be continued to the next pre[]trial.  So, 

		we can determine if the DNA results are in 

		and that the issue of extending beyond the 

		120 days for the DNA results be--that the 

		[c]ourt not rule on that until we find out 

		that it's necessary.  Until the 120 days 

		actually has passed or is about to pass, and 

		the DNA results are not in.  If they are in 

		before then, I would ask that, at least, 

		that an unnecessary extension not be granted 

		in anticipation of them being more than 120 

		days.

			[THE COURT]:  Ms. Dobson.

			[MS. DOBSON]:  Well, in terms of the 

		defense objection to my continuance until 

		next month, as Mr. Bullock has indicated, I 

		am statutorily entitled to proceed the way I 

		have, to obtain the results that I believe 

		are necessary in this case.  I can understand 

		why the defendant wouldn't want me to have 

		them.  I have a right to them and so, I 

		think that as a matter of right I should 

		have the continuance until the February 

		pretrial for the March term.  It's my ex-

		perience in dealing with these matters that 

		the DNA results are not likely to be finished 

		before the April term anyway.  Should the 

		results come back early, I am still requesting 

		a continuance now within the 120 days I have 

		initially, as opposed to the DNA continuance, 

		because I want to be the one to try this case.  

		As things have happened in my office, there 

		are few people available who have been 

		trained or experienced in the presentation 

		of DNA evidence.  I am one of those people 

		right now and I would like to handle this 

		matter myself.  So, I am requesting a con-

		tinuance until the March pre[]trial and the 

		April term."  (Emphases added.)

The court granted a continuance until the February pretrial and

the March jury term.  This was not a continuance beyond the

initial 120-day speedy-trial term.  The court declined to rule on

a continuance beyond the March term to wait and see if the DNA

results came in and if a continuance beyond the 120-day speedy-

trial term was even necessary.

		The State's argument that defendant asked for a contin

uance until the February pretrial, and is therefore himself

responsible for 28 days of delay, is based primarily upon the

January 24, 2001, docket entry, which shows defendant asked for a

continuance, and Ms. DobsonsBullock's motion for continuance, which

alleged that defendant had asked for a continuance until the

February pretrial.  The State also argues that defendant con

sented to the continuance until the February pretrial at the

January 26, 2001, hearing.  See, e.g., People v. Smith, 251 Ill. App. 3d 839, 842, 623 N.E.2d 857, 860 (1993) (an agreement on the

record to a continuance is attributable to the defendant).  We

find that the record does not support the State's assertion that

defendant asked for or consented to a continuance until the

February pretrial.

		First, no written defense request for a continuance is

anywhere in the record.  Second, defendant never made any oral

requests for a continuance at any of the hearings.  The closest

thing that came to a request for continuance by defendant was his

counsel's statement at the January 24, 2001, hearing, "Your

Honor, I believe that should be set for motions tomorrow."  Based

on the record, this can be construed at most as a request for a

continuance only until the next day.  Considering what happened

at the January 24, 2001, hearing, the January 24, 2001, docket

entry, which stated that defendant asked for a continuance, does

not support the State's argument that defendant asked for a

continuance until the February pretrial.

		Regarding Ms. Dobson's averment in her motion to

continue and attached affidavit that defendant had indicated a

request for a continuance until the February pretrial, no support

for that claim is in the record.  Again, no written or oral

defense requests are in the record for a continuance until the

February pretrial.  Further, when the State presented the motion

for continuance at the January 25, 2001, hearing, defendant

flatly objected.  At the January 26, 2001, hearing on Ms.

DobsonBull

ock's motion for continuance, defendant objected again--three

times.  

		Finally, defendant did not, as the State suggests,

consent to the continuance until the February pretrial but only

object to a continuance beyond that.  Defendant stated:  "I would

object--I would ask that--I would object to the continuance and

ask, if it's going to be continued, that it be continued to the

next pre[]trial."  Defendant therefore objected to any continu

ance, but asked that if one were to be granted, it should only be

until the February pretrial, when it could be determined if a

continuance beyond the 120-day speedy-trial term would even be

necessary.  

		The State's claim that defendant asked for or consented

to a continuance until the February pretrial is not supported by

the record.  We therefore find that defendant is not responsible

for any delay in bringing the case to trial.

		We next address defendant's argument that his speedy-

trial rights were violated.  Had there been a February pretrial and a March trial as scheduled, then the trial would have oc

curred within the 120-day window, and there would have been no

violation of the speedy-trial statute.  However, on February 22,

2001, Ms. Dobson filed a second motion to continue pursuant to

section 103-5(c) for DNA testing. The February 22, 2001, motion

contained the following allegations:

			"1.  The defendant is charged with [a]ggra-

		vated [c]riminal [s]exual [a]ssault and has 

		been in custody since November 27, 2000.        

			2.  That the alleged offense occurred in 

		a vehicle and certain items of evidence from 

		the vehicle, as well as standards from the 

		victim and standards from defendant have 

		been forwarded to the Illinois State Police 

		Forensic Sciences Laboratory in Springfield, 

		Illinois[,] for DNA analysis.

			3.  The State's continuance is requested 

		pursuant to 725 ILCS 5/103-5(c).  

			WHEREFORE the People request that the 

		case be continued to the pretrial hearing of 

		March 28, 2001."

The attached affidavit contained similar averments.

		At the February 22, 2001, hearing on the motion to

continue, the following exchange took place:

			[MR. HARRIS (prosecutor)]:  May I 

		approach?

			[THE COURT]:  Yes.  We will show Mr. 

		Harris, Mr. Bullock.  Motion by the People 

		for a continuance awaiting lab results, 

		including DNA analysis.  Mr. Bullock.

			[MR. BULLOCK]:  I would object, Your 

		Honor.  There is DNA evidence that hasn't 

		returned.  That this is a request for an ex-

		tension beyond the 120 days.  It is not 

		simply an extension awaiting lab results.

			[THE COURT]:  I understand that, Mr. 

		Bullock.  What do you think the State has to 

		put in [its] motion?

			[MR. BULLOCK]:  I think that they have 

		to put in--at least allege that there has 

		been due diligence and that the backup is un-

		avoidable.

			[THE COURT]:  Show the motion to continue.  

		Objection.  The objection is overruled.  This 

		matter will be continued to the pretrial of 

		March 28 at 9:30 in Courtroom A.  Trial term 

		beginning April 9."

		The results of the DNA testing came back from the

Joliet, Illinois, forensic science lab in a report dated March

21, 2001.  March 21 marked 114 days into the 120-day speedy-trial

term.

		The State moved for another continuance on March 28, 2001.  No written motion appears in the record.  The docket sheet

does not indicate the basis or extent of the continuance or

whether the continuance was granted or denied.  At the March 29

hearing on the State's motion to continue, defendant filed a

motion to dismiss for a violation of the speedy-trial statute.  

		On April 11, 2001, the day of trial and 135 days after

defendant was taken into custody, the court heard defendant's

motion to dismiss for violation of the speedy-trial statute. 

Defendant argued that the February 22 continuance for DNA testing

pursuant to section 103-5(c) should not have been granted because

the State made no showing of due diligence as required by the

statute.  The trial court denied defendant's motion to dismiss. 

The trial proceeded, and defendant was convicted and sentenced. 

Defendant raised the issue again in a posttrial motion, preserv

ing it for appeal.  The trial court denied the posttrial motion.

		On appeal, defendant argues that the trial court erred

in granting the February 22, 2001, motion for continuance for DNA

testing because the State failed to make a showing that it

exercised due diligence in trying to obtain the DNA test results

before the running of the 120-day speedy-trial term.  The speedy-

trial statute states that a continuance for DNA testing results

may be granted "[i]f 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 reason

able grounds to believe that such results may be obtained at a

later day ***."  (Emphasis added.)  725 ILCS 5/103-5(c) (West 2000).  The speedy-trial statute must be liberally construed in a defen

dant's favor because it enforces a constitutional right.  People v. Swanson, 322 Ill. App. 3d 339, 342, 751 N.E.2d 1182, 1184 (2001).  Thus, the State is required to show it exercised without

success due diligence.  Whether due diligence has been exercised

is to be determined on a case-by-case basis.  People v. Battles, 311 Ill. App. 3d 991, 997, 724 N.E.2d 997, 1002 (2000).  The

burden of proving due diligence is on the State.  Battles, 311 Ill. App. 3d at 997-98, 724 N.E.2d at 1002.  Therefore, the issue

presented for review is whether in this case the trial court

could have found that the State exercised due diligence in trying

to obtain the DNA results before the running of the 120-day

speedy-trial term.  We will not overturn the trial court's ruling

on due diligence unless it amounts to a clear abuse of discre

tion.  People v. Hughes, 274 Ill. App. 3d 107, 111, 653 N.E.2d 818, 822 (1995).   

		What constitutes "due diligence," and therefore what

the State must prove to be granted a continuance for DNA testing,

is not defined by the statute.  However, other courts have

addressed this issue.  The Fifth District recently held that

before a section 103-5(c) motion for continuance for DNA testing

can be granted:

		"the State should tender a full explanation 

		of each and every step taken to complete DNA 

		testing within the 120-day speedy[-]trial term.  

		The steps articulated should comprise a 

		course of action that a reasonable and pru-

		dent person intent upon completing tests 

		within 120 days would follow.  Further, the 

		showing should explain why the efforts engaged 

		in fell short of their objective and resulted 

		in an unavoidable need for delay."  Battles, 

		311 Ill. App. 3d at 998, 724 N.E.2d at 1002.

The court in Battles suggested that steps taken by the State that would show due diligence might include expeditious gathering of

evidence and the prosecutor contacting the laboratory technicians

responsible for processing the evidence to impress upon them the

need for expediency or, if a delay is inevitable, to find out how

long the delay will be.  Battles, 311 Ill. App. 3d at 1002, 724 N.E.2d at 1005.  The Third District followed the Fifth District's

example in Battles and found that the State did exercise due diligence when it promptly requested DNA testing and requested

that the testing be placed on the ASAP (as soon as possible)

list.  Swanson, 322 Ill. App. 3d at 343-44, 751 N.E.2d at 1185- 86.

		We decline to follow the Fifth District's holding in

Battles to the extent that it imposes a delineated series of steps that a prosecutor must go through before getting a continu

ance for DNA testing.  We agree with Battles to the extent that it holds that the State must exercise due diligence in getting

DNA testing done.  The provision for DNA testing was not meant to

provide an automatic continuance in every trial that involved DNA testing because the statute requires that the State must exercise

"without success due diligence to obtain results of DNA testing." 

725 ILCS 5/103-5(c) (West 2000).  However, we choose to stick

with the established rule, also stated in Battles, that due diligence is to be determined on a case-by-case basis.  Battles, 311 Ill. App. 3d at 997, 724 N.E.2d at 1002. 

		In this case, defendant was arrested and placed in

custody on November 27, 2000.  On January 19, 2001, the crime lab

received the sexual assault evidence kit and defendant's blood

samples.  The crime lab received samples of the victim's boy

friend's blood for DNA analysis on February 15, 2001.  All of the

DNA testing results were completed on March 21, 2001.  

		The State did not delay excessively in getting the DNA

materials to the lab.  The lab did not take an excessively long

time in getting the results processed.  Defendant suggests that

the State's request for a continuance was a ruse because Ms.

Dobson said that she wanted a continuance in addition to a DNA

continuance so she could try the case.  However, the trial court

did not grant Ms. Dobson's personal continuance, and when the

State asked for the continuance on February 22, it was because

the results were not back yet and the State actually needed the

continuance.  In short, while the State could have perhaps done

better, it pursued a course of action meant to get the DNA

testing done as soon as possible, and the record giveis no indica

tion that the request was a ruse.  The trial court therefore

could haveproperly fouind that the State had acted with due diligence.  The grant of the continuance was not an abuse of discretion, so

we affirm.

		Affirmed.		

     	KNECHT and McCULLOUGH, JJ., concur.