## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Minor , 2011 IL App (1st) 101097

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appellant, v. MARY MI

NOR, Def

endant- Appellee

.

District & N o. First District, Six th Division Docke t No. 1-10-1097

Filed Dec ember 9, 2011

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Where defe ndant d em an d ed a speedy trial on April 21, 2009, and then failed to appea

r on a schedule d court date on August 4, 2009, beca use she “mix ed up” court dates, and on Oct o b er 19, 2009, she filed a new demand, the tr ial court e rre d in subsequently dismiss ing the case due to

a violation of her rig ht to a speedy trial, notwithstanding her contentions that 183 day s had elapse d since her initial demand for a speedy trial and that the speedy trial period was tolled from August 4, 2009, until her new d em and was filed on October 19, 2009, since she waived her in i t i al speedy trial term whe n she fa iled to appea r on August 4, 2009, the term

was not tolled, and a new period commence d when she made her demand

on October 19, 2009, and her speedy trial rig hts were not violated as of J anuar y 6, 2010.

Dec ision Under Review Appea l from the Circuit Court of Cook County
, No

. TP-082-537; the Hon. Pamela M. L eeming , J udg e, pre siding.

J udg ment Reverse d and re manded.Counsel on

Appea l Anita M. Alvare z, S t at e’s Attorney
, of Chicag o (Alan J

. Spellberg
, Ver onica Calderon M al avia, and Anne L

. Mag ats, Assistant State’s Attorney s, of counse l), for the People.

Abishi C. Cunningham, J r., Public Def ender
, of Chicag o (Ing rid Gill, Assistant Publ ic Def

ender , of counse l), for a

ppellee.

Panel J USTI CE LAMPKI N delivere d the judgme nt of the court, with opinion. Presiding J ustice R. Gordon and J ustice Gar cia conc u r r ed in the judgme nt and opinion.

OP INION

¶ 1 The State appea ls the trial court’s dismiss al of the driving under the influence (DUI ) ca se ag ainst defe ndant, Mary Minor, on speedy trial g rounds (725 I L CS 5/103-5(b) (West 2006)). The trial court initially denied defe ndant’s motion to dismiss the case , but g rante d dismiss al on a motion to reconsider its original r

uling. The trial court then de nied the State’s motion to rec onsider the dismiss al. On appeal
, t h e State contends the trial court err ed wher e defe ndant waived her spe edy trial demand by

failingto appea

r on a subsequent court date. Ba sed on the following , we r ever se and r emand.

¶ 2 FACTS ¶ 3 Def

endant was charg e d w it

h D U I o n N ovember 27, 2007. Following her arr est, defe ndant

was rele ased on her own rec og nizance with bail set at $3,000. On April 21, 2009, defe ndant filed a speedy trial demand pursuant to section 103-5(b) of the Code of Criminal Procedur e of 1963 (Code). 725 I L C S 5 / 103/5(b) (West 2006). The case was set for trial on J une 5, 2009. On J une 5, 2009, def endant a g ain filed a

speedy trial demand. On that date, the c ase
wa s co n t inued on the State’s motion to August 4, 2009. Def endant was in court when t h e continuance date wa s g iven. ¶ 4 On August 4, 2009, defe ndant failed to appea r in court and the State answe red that it wa s
rea dy for trial. Def

ense counsel asked the court to hold defe ndant’s case until 1 p.m. beca use counsel was attempting to g et in contac t with defe ndant. The court agree d, but issued a bond forf eiture war rant when defe ndant did not appear i n the afte rnoon. Def endant appea

red in court the next day
, August 5, 2009. Def ense counsel informed the court that he attempted to

rea ch def endant twice on the telephone the previous day , but defe ndant did not rec eive the messag es until afte r 1 p.m. beca use she was at a doctor’s appointment. The trial court admonished defe ndant and quashe d an d rec alled the war rant. The case was continued on defe ndant’s motion until October 19, 2009.

-2-¶ 5 On October 19, 2009, defe ndant aga i n fi l ed a s p ee d y t rial demand. The case was

continued on the State’ s motion unt il J anuar y 6, 2010. ¶ 6 On J an u ar y 4
, 2 0 1 0
, d ef en dant filed a motion to dismiss as a result of a speedy trial violation. The motion was arg ued on J anuar

y 6, 2010. Def

endant argued that J anuar y 6, 20 1 0
, was 183 day s afte r defe ndant’s first speedy trial demand on April 21, 2009, which violated the speedy trial statute’s require ments of bring ing defe ndant to trial within 160 day s. 725 I L CS 5/ 103-5(b) (West 2006). The State r esponded that defe ndant waive d her rig ht to

a speedy trial in relation to the April 21, 2009, demand by failing to appea r in court on August 4, 2009, citing People v. Patterson
, 392 I ll. App. 3d 461, 912 N.E.2d 244 (2009). The State continued that defe ndant’s waiver cause d the speedy trial term to restar t on October 19, 2009, when she n ext demande d trial. Def endant responde d, instead, that her speedy trial period was tolled from August 4, 2009, until October 19, 2009; therefo re , upon filing the October 19, 2009, demand the ear lier demands wer e included in her speedy trial period. The trial court denied defe ndant’s motion to dismiss
, rely in g o n the “express languag e” of subsection (b) of

the spee dy

trial statute. 725 I L CS 5/ 103-5(b) (West 2006). ¶ 7 On J anuar

y 25, 2010, defe ndant filed a motion to rec onsider. The next day
, the State filed

a response

. On Fe bruar

y 18, 2010, the trial court g rante d defe ndant’s motion to rec onsider,

reve rsingits prior order

denying de fenda

nt’s motion to di smiss. I n so doing, the trial court

rea soned that subsection (f) of the speedy trial statute incorpora ted subsection (b), such that defe ndant’s speedy trial period was “suspende d” from Augus t 4
, 2 0 0 9
, when she failed to appea r in court, until October

19, 2009, when she filed her latest speedy trial demand. The trial court, there fore
, dismiss ed the case for want of speedy trial. The State filed a motion to

rec onsider citing t he rece nt case People v. Zakarauskas
, 3 9 8 I l l. App. 3d 451, 924 N.E.2d 578 (2010). ¶ 8 On Marc h 18, 2010, the court held a hearing on the State’s motion

. De fe n d an t was repres en t ed by new counsel. The trial court direc tly questioned defe ndant reg arding her absenc e on August 4, 2009. Def endant initially blamed her prior attorney for providing the incorre ct date. Def

endant then explained that s h e could not attend one of her court dates beca use her husband passed awa y

. Def endant finally explained that she mix ed up the August 4, 2009, date with August 5, 2009. The court denied the State’s motion to rec onsider, finding the Zakarauskas case distinguishable beca use defe ndant was not a “fug itive” when s he ap pear ed one day afte r her schedule d trial date. Relying on the “Appe llate Co u rt Fi rs t District” case, the court found important the distinction betwee n “explained” and “unexplained” failure s to appea r. T h e t ri al court found that, unlike the defe ndant in Zakarauskas
, defe ndant provided an explanation for her absenc e, and, there fore
, the speedy trial period wa s tolled. The cour t affir med the dismissal of defe ndant’s DUI case

.

¶ 9 DECI SI ON ¶ 10 The question bef o re u s i s wh et h er d efendant waived her speedy trial period by her absenc e in court on August 4, 2009, or if the period was tolled from that date until she next demande d trial on October 19, 2009. In order to resolve this question, we turn to the languag e of the speedy

trial statute.

-3-¶ 11 The speedy trial statute incorporates a defe ndant’s constitutional right to a speedy trial.

People v. Cordell
, 223 I ll. 2d 380, 385-86
, 8 6 0 N. E

. 2 d 323 (2006). The g oal of statutory interpre tation is to asce rtain and g ive eff ect to the leg islature’s intent. Id

. at 389. In order to do so, we look to t h e l anguag e of the statute, g iving it its plain and ordinary meaning

. Id

. When the statutory languag e is clea r and unambiguous, the terms must be applied as written. People v. W

o o d d el l
, 2 19 I ll. 2d 166, 171, 847 N.E.2d 117 (2006). Questions of statutory interpre tation are leg al and a re r eviewe d de novo

. Cordell , 223 I ll. 2d at 389. ¶ 12 Subsection (b) of the speedy trial statute provides: “Eve ry person on bail or rec og nizance shall be tried by the court having jurisdicti on within 160 day s from the date defe ndant demands trial unless delay is occa sioned by the defe ndant ***. The defe ndant’s fa i l u re to appea r for any court date set by the court operates to waive t h e d ef en dant’s demand for trial made under this subsection.” 725 I L CS 5/ 103-5(b) (West 2006).
T he st atute was amende d to include the final sentence reg arding waiver in 2000. Pub

. Ac t 91-123, § 5 (e ff. Jan. 1, 2000). Subsection (f) of the statute c ontinues: “De lay occa sioned by the defe ndant shall temporar ily suspend for the time of the delay the period within which a person shall be tried as presc ribed in subsections (a)
, (b), or (e) of this Section and on the day of expiration of the delay the said period shall continue at the point at which it wa s suspended. *** This subse ction (f) shall become eff ective on, and apply to persons char g ed with alleg ed offe nses committed on o r af t er , Marc h 1, 1977.” 725 I L CS 5/ 103-5(f ) (West 2006). ¶ 13 In Zakarauskas
, this court rec ently interpre ted subsections (b) and (f) of the speedy trial statute. In so doing, the court said: “F rom 1977 until the 2000 amendment of section 103-5(b)
, a delay occa sioned by a defe ndant’s failure to appea r in court suspended the 160-day speedy trial term. [C itations.] The plain languag e of section 103-5(b) as amende d in 2000 manife s t ed t he leg islature’s intent to distinguish a defe ndant’s failure to appea r in court from other ty

pes of delay
, a motion for continuance
, for example, either by the defe ndant or by ag ree ment. We believe the 2000 ‘wa iver’ amendment to section 103-5(b) controls the dispositi on of this case

. Waiver includes the notion of relinquishment.” Zakarauskas
, 398 I ll. App. 3d at 454. We see no need to depar

t from the well-re asoned Zakarauskas opinion, espec ially wher e the fac ts of this case a

re striking ly

simil ar. ¶ 14 I n Zakarauskas
, the defe ndant was arr ested fo r DU I an d re l ea s ed o n h i s o wn
rec og nizance. The defe ndant made a speedy t rial demand in April 2006 and, following

sev er al co ntinuances by ag ree ment, was absent on the date set for trial, October 6, 2006. When the defe ndant could not be rea ched by telephone, the defe nse counsel explained that there had been a “mix up” beca use defe nse counsel was on vacation when the defe ndant last appea red in court. The trial court entered a bond forf eiture warr ant and continued the case to October 11, 2006. Def endant appea

red on that date and filed a new written speedy trial demand. On the date set for trial, Marc h 20, 2007, the defe ndant moved to dismiss his case ,

-4-arguing that his 160-day term had elapse d. After initially deny ing the defe ndant’s motion to dismiss
, the trial court reve rsed its decision and dismiss ed the char g es upon rec onsideration, finding the “dela

y occa sioned by the [d] efe ndant” was within the meaning of subsection (f)

o f the speedy trial statute. (Interna l quotation marks omitted.) Id

. at 452-53. T h e S t at e ap p ealed. On review, t his court concluded the defe ndant vol untarily relinquished his ri gh t to trial within 160 day s of his first speedy trial demand when he failed to appea r. Id

. at 454. This court noted that “[w]hen defe ndant failed to appea r he was no l o ng er on bail” and

rea soned that “[i] f we wer e to treat a [bond forfeiture war rant] incident as compa

rable to a reque st for a continuance or other delay
, a fug itive defe ndant would be entitled to the benef it of an ear lier speedy trial demand when appre hended and ag ain broug ht befor e the court.” Id

. ¶ 15 Her e, defe ndant first demande d trial on April 21, 2009. Def endant was then absent fr om

a schedule d court date on August 4, 2009. Def ense counsel attempted to c ontact defe ndant without succe ss and a bond forf eiture war rant was issued. Def

endant appea

red the following day and eventua lly explained that she “mix ed up” the court dates. Def endant next demande d

a speedy trial on October 19, 2009. Applying the pl ai n, unambiguous languag e of section 103-5(b) of the Code (725 I L C S 5 /103-5(b) (West 2006)), we conclude that defe ndant waived her initial speedy trial term beg inning on April 21, 2009. The new speedy trial period beg an on Oc tober 19, 2009, whe n she ag ain fil ed a demand. The speedy trial term wa s not tolled, as argued by defe ndant. As a result, defe ndant’s speedy trial rights wer e not violated as of January

6, 2010. ¶ 16 We are reminded that, in interpre ting statutes, courts must consider the statute as a whole by looking at all rele vant p arts toge ther. In re Jessica M.
, 399 I ll. App. 3d 730, 748, 928 N.E.2d 511 (2010) . Moreove r, “[a]n amendment to a statute is presumed to be int ended to eff ect a chang e in the law as it former ly exis ted.” People v. Craig
, 403 I ll. App. 3d 762, 768, 93 4 N. E

. 2d 657 (2010). The 2000 amendment to the speedy trial statute clarified that a defe ndant’s failure to appea r in court ope rate s as a wa iver to a pr ior demand. Pub. Ac t 91- 123, § 5 (ef

f. J an. 1, 2000). The leg islature, there fore
, distinguished failure s to appea r from other “ [d] elay s occa sioned by the def endant.” See 725 I L CS 5/ 103-5(f ) (West 2006). ¶ 17 We find that “explained” failure s to appea r and “unexplained” failure s to appea r hold no rele vance where t h er e is no such distinction in the languag e of the statute. “We will not

rewrite a statute under the guise of statutory constru ct i o n or depar t from a statute’s plain languag e by rea d i n g i n to it conditions, exceptions, or limit ations not expressed by the leg islature.” In re M.A.
, 356 I ll. App. 3d 733, 737, 826 N.E.2d 1071 (2005). Contrary to the trial court’ s Marc h 18, 2010, rulingdenying the State’s m otion to rec onsider the dism issal of def endant’ s case , in Zakarauskas , this court did not hold that an explained abse nce w as relieve d of the waiver result provided by subsection (b) of the speedy trial statute. Moreove r, the Zakarauskas fac ts are not distinguishable from this case wher e both defe ndants “mix ed up” the trial dates and their war rants wer e quashed and rec alled within day s, one day for our defe ndant and five day s for the Zakarauskas defe ndant. The Zakarauskas languag e cited by defe ndant in her br ief a

nd appar ently

relied on by

the trial court states that “we believe the leg islature sin gl ed o ut an unexplained failure to appea r for separ ate statutory treatment.” Zakarauskas
, 398 I ll. App. 3d at 452. That languag e is found in the introduction of the case and cannot be extended to ref lect the court’s holding. Whether t h e d efe ndant had an

-5-explanation for his failure to appea r did not enter the court’s calc ulus in finding the defe ndant waived his spee dy

trial demand. Id . at 454. ¶ 18 The Patterson decision supports our conclu s i o n wh er e it was held that the def endant waived his speedy trial demand when he fa i led to appea r on the schedule d trial date. Patterson
, 392 I ll. App. 3d at 467. The court went on to note that, waiver aside, the defe ndant would have f

ailed to pr ove his spe edy trial rig hts ha d been violated under subsection (f) of the statute wher e he contributed to the delay by failing to notify the trial court of his location afte r beingrele ased f

rom prison. Id . at 467-68. ¶ 19 We, there fore
, conclude the trial court err ed in fi n d i n g a s p ee d y t ri al violation and dismiss ing de fenda

nt’s case

.

¶ 20 CONCLUSI ON ¶ 21 Be caus e we co n cl u d e that the speedy trial statute was not violated, we reve rse the judgme nt of the trial court and rema nd the cause with instruct ions to reinstate the char g es ag ainst defe ndant and pr ocee d with trial.

¶ 22 Reverse d and re manded.

-6-