NO. 4-00-0873

	IN THE APPELLATE COURT

	OF ILLINOIS

	FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,	)	Appeal from

	Plaintiff-Appellant,		)	Circuit Court of

	v.			     		)	Vermilion County

RAY LAMAR HILLSMAN,		 			)	No. 00CF239

	Defendant-Appellee.			)	

	                     		)	Honorable

							)	Claudia S. Anderson,

							)	Judge Presiding.

_______________________________________________________________

	JUSTICE KNECHT delivered the opinion of the court:

	On February 1, 2000, defendant, Ray Lamar Hillsman, was arrested on various charges and the Illinois Department of

Corrections (DOC) issued a parole hold.  On May 22, 2000, the

date of defendant's trial, the trial court denied the State's

motion to continue because defendant had been in custody for 112

days.  The State did not accept the trial court's offer to

reschedule the trial for defendant's 120th day of custody. 

Instead, the State entered a nolle prosequi on the charges and refiled the charges the same day.  On October 2, 2000, the date

of defendant's trial on the refiled charges, the trial court

granted defendant's motion for discharge because the State

violated his right to a speedy trial under section 103-5(a) of

the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/103-

5(a) (West 1998)).  The State appeals, arguing defendant's right

to trial within 120 days did not commence because he was in custody on a parole hold.  We affirm.

I. BACKGROUND

	On February 1, 2000, defendant was arrested on the

charges of unlawful possession of a weapon by a felon (720 ILCS

5/24-1.1(a) (West 1998)) and obstructing justice (720 ILCS 5/31-

4(a) (West 1998)).  As a result of defendant's arrest, DOC issued

a parole hold.  Defendant did not post bond on the February 2000

charges (case No. 00-CF-52) and he remained in custody.  The

record is silent as to the specific date DOC issued the parole

hold and when defendant was remanded to DOC on the parole hold. 

	Defendant's trial was scheduled for May 22, 2000, which

was the 112th day defendant was in custody.  On this date,

defendant filed a motion to dismiss and a motion in limine.  The State moved to continue the case to a date beyond defendant's

120th day in custody, but the trial court denied the State's

request.  The trial court offered to reschedule defendant's trial

to May 30, 2000, which would be defendant's 120th day in custody

in case No. 00-CF-0239.  The State did not agree to this date and

moved to enter a nolle prosequi.  The State also indicated it would refile the charges later the same day.

	Defendant objected to the State's motion to nol-pros

the charges and asserted the State was attempting to circumvent

the 120-day rule set forth in section 103-5(a) of the Code.  725

ILCS 5/103-5(a) (West 1998).  The trial court allowed the State

to nol-pros the charges on the morning of May 22, 2000.  Defen dant remained in custody on the previously issued parole hold and

the State refiled the charges herein (No. 00-CF-0239) later the

same day.  This time, however, the State allowed defendant to

obtain a recognizance bond on the refiled charges; but defendant

remained in custody on the parole hold.  We note the limited

record before us indicates defendant's bond was set at $1 million

on the February 2000 charges.  The record shows defendant was

remanded to DOC after the May 22, 2000, hearing, and a trial date

was not set within 120 days.     	

	On October 2, 2000, the date of defendant's trial on

the refiled charges, defendant filed a motion for discharge

alleging he had been in continuous custody since his February 1,

2000, arrest, a total of 245 days.  In support of his motion,

defendant argued that at the May 22, 2000, hearing, the State

improperly moved to nol-pros the original charges in No. 00-CF-52

and then refiled the charges herein on the same day in an effort

to circumvent the 120-day rule.  The State was not prepared to

address defendant's motion and sought a continuance, which the

trial court denied.  After the trial court granted a short recess

to allow the State time to respond to defendant's motion for

discharge, the State simply objected to defendant's motion

without providing any legal argument.  The trial court found

defendant's motion for discharge was "well taken."  Accordingly,

the court granted the motion and dismissed the charges with

prejudice.  

	The State now appeals, arguing the trial court erred when it granted defendant's motion for discharge because the 120-

day speedy-trial term does not commence while a defendant is held

on a parole hold.  In the alternative, the State argues the trial

court abused its discretion when it denied the State's motion to

continue.  We affirm.

II. ANALYSIS

A. Motion for Discharge

	Every person in custody in Illinois for an alleged

offense shall be tried within 120 days from the date he or she

was taken into custody.  725 ILCS 5/103-5(a) (West 1998).  Every

person on bail or recognizance shall be tried within 160 days

from the date defendant demands trial.  725 ILCS 5/103-5(b) (West

1998).  Subsection (b) of section 103-5 also applies to persons

committed to any institution, facility, or program of DOC who

have untried complaints, charges, or indictments pending in any

county of Illinois.  730 ILCS 5/3-8-10 (West 1998).  

	As a preliminary matter, we note the State's brief

mentions defendant apparently never filed a demand for trial. 

Therefore, because DOC issued a parole hold after defendant's

arrest, the State asserts defendant was required to file a

demand; then, under section 103-5(b), the State would have had

160 days to try defendant.  We will not entertain the State's

assertion for two reasons.  First, the record before us begins on

May 22, 2000, the date the State nol-prossed the original charges

and refiled new charges against defendant.  Because defendant was originally arrested on February 1, 2000, and the record is silent

as to any activity that occurred in the case for nearly four

months, we cannot determine whether defendant filed a demand

between February 1 and May 22, 2000.  Second, the State did not

raise the issue of whether section 103-5(b) applied to defendant

and whether defendant had a duty to file a demand.  Thus, the

trial court never had an opportunity to consider the issue. 

Therefore, because the record is unclear and because the State

failed to pursue this issue before the trial court, we will

address only the issue of whether the State violated defendant's

right to a speedy trial under section 103-5(a).  See People v. Williams, 218 Ill. App. 3d 442, 443, 578 N.E.2d 313, 313-14 (1991) (waiver applies to the State as well as to criminal

defendants).  

	The appellate districts appear divided as to whether a

defendant's detention on a parole hold as a direct result of his

arrest on another charge is a "detention" for purposes of the

speedy-trial term.  The State cites People v. Daily, 30 Ill. App. 3d 413, 332 N.E.2d 146 (1975) (Fourth District), in support of

its position defendant's 120-day speedy-trial term did not run after DOC issued its parole hold.  Defendant, however, argues the

State's reliance on Daily is weak because the facts in the present case are distinguishable and because other courts have

held that a defendant who is held on a parole violation based

upon the same charge for which he is later tried, is "in custody"

for purposes of computing the 120-day speedy-trial term.  People v. Patheal, 27 Ill. 2d 269, 271-73, 189 N.E.2d 309, 310-11 (1963); People v. Manna, 96 Ill. App. 3d 506, 510-11, 421 N.E.2d 542, 546-47 (1981) (Second District); People v. Burchfield, 62 Ill. App. 3d 754, 756-57, 379 N.E.2d 375, 376-77 (1978) (Third

District); People v. Powell, 43 Ill. App. 3d 934, 936, 357 N.E.2d 725, 726-27 (1976) (Third District).  As explained below, we

agree with defendant and find the State's total reliance on Daily is misplaced.

	In Daily, the defendant was arrested for armed robbery on August 17, 1973.  He posted bond on September 5, 1973, and was

released.  On September 7, 1973, he was arrested for a parole

violation due to his arrest on the armed robbery charge.  He

remained in custody until December 13, 1973.  On that date, the

parole warrant was withdrawn and defendant moved for return of

his bond money.  The State also granted defendant a recognizance

bond, but in an attempt to remain in custody, defendant refused

to sign the bond.  The court, however, granted the State's motion

to release defendant on a recognizance bond and defendant was

released.  Defendant's trial was set for January 14, 1974.  The

trial court denied defendant's motion for discharge on the basis

of the 120-day rule.  Daily, 30 Ill. App. 3d at 415, 332 N.E.2d at 147.

	Under these facts, the court concluded the time defen

dant was incarcerated on a parole hold as a direct result of an

arrest for armed robbery did not count toward the 120-day term.  Daily, 30 Ill. App. 3d at 415, 332 N.E.2d at 148.  We recognized that to be discharged under the 120-day rule, a defendant must

have been "in custody in connection with the charge for which he

was subsequently tried."  Daily, 30 Ill. App. 3d at 415, 32 N.E.2d at 147.  We found the parole warrant and the armed robbery

charge were "closely intertwined" but they were not interchange

able.  The court determined because defendant was technically

free on bond from the armed robbery charge when the parole

warrant was withdrawn, the 120-day term did not begin to run

until he asked for and received the return of his bond money from

the original arrest charges.  Therefore, the court concluded

defendant's detention on the parole warrant did not trigger the

120-day rule.  Daily 30 Ill. App. 3d at 415, 32 N.E.2d at 148.  

	The factual differences between Daily and the present case are significant.  In the present case, the defendant did not

post bond on the original charges and, therefore, was never

released from custody.  Further, even though the State agreed to

a recognizance bond for defendant when it refiled the charges the

same day it nol-prossed the original charges, defendant remained

in continuous custody as a direct result of his February 1, 2000, arrest.  In contrast, the defendant in Daily posted bond on the armed robbery charges and was free when he was arrested and taken

back into custody on the parole warrant.  We also note in Daily, after being held in custody on the parole warrant for approxi

mately 97 days, the warrant was withdrawn and defendant was again released because he was

still free on bond from the armed robbery charge and the warrant was withdrawn.  Daily, 30 Ill. App. 3d at 414-15, 332 N.E.2d at 147.   

	We find the current case is very similar to Burchfield, one of the cases cited by defendant.  Initially, we note in

Burchfield, the Third District found our decision in Daily was inconsistent with the prior Illinois Supreme Court ruling in

Patheal.  In Patheal, nearly four months after being arrested and held in custody in Coles County on an armed robbery charge, the

defendant was released into the custody of DOC for violating his

parole.  Defendant was eventually taken back into custody in

Coles County, where, well after the statutory speedy-trial period

had run, he stood trial on the armed robbery charges.  On appeal,

the State argued defendant was not in custody on the armed

robbery charge until he was returned to Coles County after being released from  DOC, and therefore, the speedy-trial term did not

commence until that time.  The supreme court refused to divide

the time defendant spent in custody in Coles County and DOC into

two separate periods and stated:

	"Fiction would supplant fact if we were to

say that this entire period of confinement,

just nine days short of the statutory four

months, is to be disregarded on the ground

that Coles County had no legal authority to

put the defendant in jail because he was

technically within the custody of the Depart

ment of Public Safety.  The constitutional

right to a speedy trial does not depend upon such technicalities."  Patheal, 27 Ill. 2d  at 271, 189 N.E.2d at 310.

	Even though the Burchfield court noted its disagreement with our decision in Daily, we conclude the factual differences between Patheal and Daily warranted our decision in Daily.  As previously discussed, the defendant in Daily was not in continu ous custody, and he was free on bond on the original charges

until he asked for the return of his bond money.  Due to these

important factual differences and because the facts before the

court in Burchfield were more similar to Patheal than to Daily, the Burchfield court correctly declined to follow our decision in Daily.   However, we do not agree with the Third District's assessment of our holding in Daily as being "inconsistent" with Patheal.  Burchfiedlld , 62 Ill. App. 3d at 757, 379 N.E.2d at 377.  Nevertheless, as discussed below, the facts of the present case

are dissimilar to those in Daily and similar to those in Burchfield; and therefore, we find Burchfield controls.    	In Burchfield, defendant was arrested on September 1, 1977, for unlawful possession of a controlled substance.  Initially,

defendant was unable to post bond, but the State later granted a

personal recognizance bond on the unlawful possession charge. 

However, defendant remained in custody due to the parole warrant. 

On January 6, 1978, the trial court granted defendant's motion

for discharge because he had been in custody over 120 days, and

he was never actually released on bond.  Burchfield, 62 Ill. App. 3d at 755-56, 379 N.E.2d at 376.  The appellate court affirmed, holding where a defendant is in custody for a parole violation

based upon the charge for which he is later to be tried, he must

be brought to trial within the 120-day period.  Burchfield, 62 Ill. App. 3d at 756-57, 379 N.E.2d at 377. 

	Burchfield is similar to the present case in that both defendants did not post bond on the original charges, and they

remained in continuous custody due to parole holds despite being granted recognizance bonds on the original arrest charges. 

Therefore, we find under the specific facts of the present case,

the State should have taken the necessary steps to bring defen

dant to trial within 120 days, and the 120-day period began when

defendant was arrested and taken into custody on the original charges in No. 00-CF-52 on February 1, 2000.  

	We further agree with defendant's argument the State's

decision to nol-pros and refile the charges later the same day

was an improper attempt to avoid the 120-day speedy-trial term,

and therefore, the nolle prosequi did not toll the speedy-trial term.  The State does not contest the fact that on May 22, 2000,

it moved to nol-pros the charges only after the trial court denied its motion to continue defendant's trial to a date past

the 120-day speedy-trial term.  On that day, defense counsel

argued against the State's motion to nol-pros the charges because

counsel believed the State was attempting to avoid statutory

limitations.  Defense counsel again presented this argument

during the October 2, 2000, motion for discharge, but the State

did not respond to defendant's argument before the trial court on either occasion, nor does the State address this issue on appeal. 

	In most situations, the State's decision to nol-pros

charges against a defendant tolls the running of the statutory

speedy-trial period because the pending charge is terminated and

the refiling of the charge is the institution of a new proceed

ing.  People v. Young, 220 Ill. App. 3d 488, 495-96, 581 N.E.2d 241, 246 (1991), citing People v. Stinnett, 166 Ill. App. 3d 1027, 1028, 520 N.E.2d 1204, 1204 (1988) (Fourth District).  In

both Young and Stinnet, the courts stated because no charges were pending and because defendants were released from bond after the

State nol-prossed the charges, the speedy-trial provision did not

apply.

	However, a nolle prosequi will not toll the statutory speedy-trial period if the State uses it to cause delay or to

avoid statutory limitations.  In re A.F., 282 Ill. App. 3d 930, 932, 668 N.E.2d 1168, 1170 (1996), citing People v. Decatur, 191 Ill. App. 3d 1034, 1038, 548 N.E.2d 509, 512 (1989).  Thus, our

inquiry is whether the State abused its power to use the nolle prosequi and whether the refiling of the charge was "vexatious, repetitious[,] or employed to manipulate the proceedings in order

to evade or frustrate the purpose of the speedy-trial statute."  Decatur, 191 Ill. App. 3d at 1038, 548 N.E.2d at 512.  In these cases, the courts found no abuse of power because no evidence

showed the State was attempting to either gain a tactical advan

tage over the defendants or frustrate defendants' right to a

speedy trial.  A.F., 282 Ill. App. 3d at 933, 668 N.E.2d at 1170 (State nol-prossed charges because police witnesses were unavail

able); Decatur, 191 Ill. App. 3d at 1038, 548 N.E.2d at 512 (State nol-prossed charges because laboratory analysis was

incomplete).  It is also important to note the defendants in these cases were released from custody after the State nol-

prossed the charges.

	In the present case, there is no doubt the State's

motive in moving for a nolle prosequi and refiling the charges was to avoid the running of the 120-day speedy-trial period.  The

State requested a continuance, but defendant objected because he

had been in custody for nearly 120 days.  Only after the trial

court denied the State's motion to continue the trial to a date

past defendant's 120-day term did the State moved to nol-pros the

charges.  The State even admitted it intended to simply refile

the charges later the same day, which it did, thus averting the

120-day term.  The State did not indicate any other reason for

its motion, such as problems locating witnesses or obtaining lab

results or other necessary evidence.  Further, despite defen

dant's recognizance bond on the refiled charges, defendant

remained in continuous custody due to the parole hold after the State nol-prossed the charges and before it refiled new charges a

few hours later.  Under these facts, we find no other explanation

for the State's ruse other than a blatant attempt to avert the

running of the 120-day speedy-trial period.  Therefore, we find

the nolle prosequi did not toll defendant's speedy-trial period.

	In sum, we affirm the trial court's order granting defendant's motion for discharge for two reasons.  First, on the

record before us, defendant's 120-day speedy-trial term commenced

on February 1, 2000, the date defendant was arrested and taken

into custody, and the State failed to bring him to trial within

120 days.  Second, the State's improper entry of a nolle prosequi on the original charges and its refiling of the charges on the

same day did not toll the running of defendant's 120-day speedy-

trial term.  Therefore, defendant remained in custody for 245

days, well beyond the 120-day term, before the State brought him

to trial on October 2, 2000.

B. Motion To Continue

	During the trial court proceedings on October 2, 2000,

the State made a motion to continue when defendant presented his

motion for discharge.  The State asserted it needed more time to

research the issue.  The trial court denied the State's request.

On appeal, the State argues the trial court abused its discretion

when it denied the State's motion.

	A trial court's decision to grant or deny a motion to

continue is a discretionary matter, and this court will not set

aside the trial court's determination unless it amounts to an

abuse of discretion.  People v. Brown, 92 Ill. 2d 248, 258, 442 N.E.2d 136, 141 (1982).  An accused is entitled to discharge if

his trial begins more than 120 days after he was placed in

custody, and a defendant in such a position is entitled to

discharge on the day of his scheduled trial.  People v. L:addadd, 294 Ill. App. 3d 928, 935, 691 N.E.2d 896, 903 (1998), (citing People v. McDonald, 168 11.Ill. 2d 420, 438-39, 660 N.E.2d 832, 839 (1995)), aff'd. , 185 Ill. 2d 602, 708 N.E.2d 359 (1999)).

	In the present case, the trial court took a recess to

allow the State to perform some research and formulate a response

to defendant's motion.  Further, the State was on notice defen

dant intended to file a motion for discharge since the May 22,

2000, hearing, when defense counsel announced his intentions in

open court.  Finally, defendant's motion for discharge was heard

on the date of his scheduled trial, and he was entitled to be discharged on that date if the motion was successful.  Accord

ingly, the trial court did not abuse its discretion when it

denied the State's motion to continue.

III. CONCLUSION

	We affirm the trial court's order granting defendant's

motion for discharge.

	Affirmed.

	KNECHT, J., with McCULLOUGH, P.J., and STEIGMANN, J., concurring.