ILLINOIS OFFICIAL REPORTS

Appellate Court

People v. Higgenbotham, 2012 IL App (1st) 110434

Appellate Court

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v.

JOANN HIGGENBOTHAM, Defendant-Appellee.

 District & No. First District, Fourth Division

Docket No. 1-11-0434

Filed

Rehearing denied

June 28, 2012

July 24, 2012

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

A defendant’s absence from court due to physical incapacitation

supported a temporary suspension of the running of the speedy trial

period, but her subsequent failures to appear without prior

communication with her counsel or the court operated as a waiver of the

demand such that a new term began to run when she next appeared and

demanded a speedy trial.

Decision Under 

Review

Appeal from the Circuit Court of Cook County, Nos. TP-311029, TP311030, TP-311031, TP-311032, TP-311033; the Hon. Thomas Lyons,

Judge, presiding.

Judgment Reversed and remanded.
Counsel on

Appeal

Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,

Veronica Calderon Malavia, and Kalia M. Coleman, Assistant State’s

Attorneys, of counsel), for the People.

Abishi C. Cunningham, Jr., Public Defender, of Chicago (Harold J.

Winston, Assistant Public Defender, of counsel), for appellee.

Panel JUSTICE PUCINSKI delivered the judgment of the court, with opinion.

Presiding Justice Lavin and Justice Sterba concurred in the judgment and

opinion.

OPINION

¶ 1 The State appeals an order of the circuit court granting defendant Joann Higgenbotham’s

motion to dismiss multiple traffic law violations on speedytrial grounds. On appeal, the State

argues that the circuit court’s order fails to accord with the plain language of the speedy trial

statute (725 ILCS 5/103-5(b) (West 2008)) as well as relevant case law interpreting that

provision. For the reasons explained herein, we reverse the judgment of the circuit court.

¶ 2 I. BACKGROUND

¶ 3 On February 23, 2008, defendant was arrested and charged with multiple traffic law

violations, including: failure to render aid (625 ILCS 5/11-403 (West 2008)); operating a

motor vehicle without insurance (625 ILCS 5/3-707 (West 2008)); driving under the

influence (625 ILCS 5/11-501(a)(4) (West 2008)); driving on a suspended license (625 ILCS

5/6-303(a) (West 2008)); and leaving the scene of an accident involving an unattended

vehicle (625 ILCS 5/11-404 (West 2008)).

¶ 4 Following her arrest, defendant was released on her own recognizance with bail set at

$3,000. Defendant failed to appear in court on March, 20, 2008, her initial court date, and

the court issued a bond forfeiture warrant (BFW). The trial court subsequently quashed and

recalled the BFW when defendant appeared on the judgment date. Another BFW was entered

on July 10, 2008, when defendant failed to appear in court a second time, but was later

quashed and recalled when she appeared on the judgment date. Thereafter, the cause was set

for trial on October 30, 2008. Defendant, however, failed to appear on the trial date and the

trial court issued a third BFW. This BFW was also subsequently quashed and recalled when

defendant appeared in court on the judgment date. The trial date was then rescheduled for

January 21, 2009. On that date, both parties entered appearances but neither party answered

ready for trial, and a new trial date of March 25, 2009, was set by agreement. On that date,

the trial court called the case but defendant was not present and the court issued yet another

BFW. Defendant did appear in court later that day, however, and at that time the BFW was

quashed and recalled and the parties agreed to a new trial date: June 9, 2009. Defendant,

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however, failed to appear on the June 9, 2009, trial date and another BFW was entered and

the cause continued to June 23, 2009. Defendant also failed to appear in court on June 23,

2009, and the court issued a sixth BFW.

¶ 5 By agreement, the parties set a new trial date for November 20, 2009. On this court date,

defendant answered ready for trial but the State answered not ready. Defendant immediately

filed her first demand for a speedy trial and the cause was continued to January 5, 2010. On

that date, both parties appeared in court but the State answered not ready for trial and

defendant filed her second written demand for a speedy trial. The cause was then continued

to April 23, 2010, at the request of the State. On that date, defendant was not present and

defense counsel informed the court that she had been hospitalized in the intensive care unit

at Mercy Hospital. Defense counsel then provided the court and the State with a note written

by defendant’s treating physician that stated: “To whom it may concern: This letter is to

certify that Ms. Joann Higgenbotham (DOB 11/29/42) is currently admitted to Mercy

Hospital Intensive Care Unit and will [be] unable to participate in scheduled court case.”

Defense counsel thus sought a continuance pursuant to section 114-4(i) of the Code of

Criminal Procedure of 1963 (Criminal Code) (725 ILCS 5/114-4(i) (West 2008)), as a result

of defendant’s documented physical incapacity. Given defendant’s medical state, the trial

court granted defendant’s motion for a continuance until May18, 2010. Because the case was

“on term” the State also sought leave for an additional 21 days to be added to the speedy trial

term, and the court instructed the State to “argue it on the next court date.”1

¶ 6 On May 18, 2010, defendant failed to appear in court. Defense counsel informed the

court that she had been unable to reach defendant or anymember of defendant’s family since

defendant’s hospitalization and requested the court to continue the cause for one week. The

State objected to defense counsel’s request for a continuance and requested the court to issue

another BFW. The trial court denied the State’s warrant request but indicated it would issue

a warrant if defendant failed to appear on the next court date. The court then continued the

case to May 25, 2010. On that date, defendant failed to appear in court once again. Defense

counsel had no information about defendant’s whereabouts and the State renewed its request

for a BFW. The court instructed defense counsel to “[g]et letters out to everybody” and

entered and continued the State’s request for a BFW. The court indicated that the warrant

would be issued on the next court date if defendant failed to appear. The trial court then

continued the cause to June 22, 2010.

¶ 7 On that date, defendant appeared and presented the court with another doctor’s note that

stated that she had been hospitalized at RML Specialty Hospital for acute respiratory failure

from May 4, 2010, to June 2, 2010, which served to explain her two most recent absences

from court. The parties then agreed to a new trial date: September 1, 2010. On that date,

The 21-day extension was never argued at a subsequent court date; however, it does not 1

impact the decision as both parties agree that an additional 21 days would have had no effect on the

calculations that are part of the instant appeal. By defendant’s calculation, the State exceeded the

speedy trial term by 57 days, rendering a 21-day extension immaterial. Pursuant to the State’s

argument, the defendant waived her speedy trial demand and a new term commenced on September

1, 2010, when she filed her third demand, and thus its prior request for an extension was of no

consequence.

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however, the State again answered not ready for trial and defendant filed her third demand

for a speedy trial. At the State’s request, the cause was continued to October 28, 2010. On

the October 28, 2010, trial date, the State answered ready but defendant filed a motion to

dismiss, alleging that her right to a speedy trial had been violated. In her motion, defendant

observed that she had filed her first demand for a speedy trial on November 20, 2009, and

that as of October 28, 2010, 210 days had passed since her first demand, which far exceeded

the 160-day time limitation set forth in the speedy trial statute. Defendant calculated her

speedy trial term as follows:

“November 20, 2009 to January 5, 2010 (46 days)

January 5, 2010 to April 23, 2010 (107 days)

September 1, 2010 to October 28, 2010 (57 days)

Total: 210 days”

¶ 8 The trial court conducted a hearing on defendant’s motion that day. At the hearing, the

State calculated defendant’s speedy trial term to be 57 days. The State argued that the term

had started over on September 1, 2010, when defendant made her third demand for a speedy

trial. To support its calculation, the State cited section 103-5 of the speedy trial statute (725

ILCS 5/103-5 (West 2008)) and this court’s decision in People v. Zakarauskas, 398 Ill. App.

3d 451 (2010), and argued that a defendant’s failure to appear in court operates as a waiver

of her demand for a speedy trial. Because defendant failed to appear at three scheduled court

dates during her illness, the State argued that defendant’s prior speedy trial demands were

waived.

¶ 9 Defendant disputed the State’s interpretation of relevant case law and statutory authority.

Specifically, defendant argued that pursuant to this court’s ruling in Zakarauskas, waiver

only occurs where a defendant’s absence is unexplained. Because defendant provided the

court with doctors’ notes and explained her failures to appear, defendant argued that her

speedytrial term was merely tolled during the dates of her hospitalization. To furthersupport

her argument, defendant directed the court to section 114-4(i) of the Criminal Code (725

ILCS 5/114-4(i) (West 2008)) and argued that pursuant to that provision, a defendant’s

physical incapacity merely suspends, rather than waives, a defendant’s demand for a speedy

trial.

¶ 10 After hearing the arguments of the parties, the court granted defendant’s motion to

dismiss. In doing so, the court stated:

“[Defendant] was hospitalized. *** And I have no reason to believe she was belingering

[sic]. I think she probably was in dire need of serious medical treatment. State, I know

this is a draconian, that the reliefsought by the Defense is very draconian in this case but

I can also see why [defendant] in her fragile state would have been anxious to get this

case released and at her attorneys urging get the case for trial. I do have, I have been

satisfied with the documentation provided *** on behalf of [defendant] that she was

incapacitated and hospitalized and to no fault of her own missed court. And therefore,

I am reluctant to find that the delay was occasioned by the defendant.”

¶ 11 The State subsequently filed a motion to reconsider the court’s dismissal. After hearing

the arguments of the parties, the court denied the State’s motion. The court explained its

rationale as follows:

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“[T]he State is urging me to feel [sic] that [defendant’s] failure to appear when she was

in the intensive care unit should operate at the effect of a bond forfeiture warrant where

she voluntarily relinquished her right to a speedy trial by failing to appear in court, and

that the [S]tate should get a[n] entire new term.

The Defense urges me to treat that failure to appear because she was in the intensive

care unit as a motion defendant something that would simply toll the term. I think that

accurately describes both parties[’] positions and I think that was discussed last time.

There are a couple of unusual twists in this case. The fact that there was a repeated

request for a bond forfeiture warrant, it was entered and continued but the warrant was

never issued. We also had at one point a request by the State for an extension of the term.

***

Never the less [sic], after carefully considering all of the evidence and the arguments

made by counsel and carefully reviewing the State’s motion to reconsider, and again

reviewing the appropriate case law, Isee nothing new, no new arguments to persuade me

that I have erred, my initial inclination was in error.

I do feel that the defendant’s failure to appear because she was in the intensive care

unit and the physical observation, the in-court observation made by this Court about the

defendant’s obvious physical difficulties in health concerns which prevented her from

coming to court we’re [sic] not willful and she did not voluntarily relinquish the right to

a speedy trial.”

¶ 12 This appeal followed.

¶ 13 II. ANALYSIS

¶ 14 On appeal, the State argues that defendant waived her demand for a speedytrial when she

failed to appear in court on three consecutive court dates, and thus, the trial court erred in

granting defendant’s motion to dismiss. In support, the State cites to section 103-5(b) of the

speedy trial statute (725 ILCS 5/103-5(b) (West 2008)) and this court’s decisions in People

v. Zakarauskas, 398 Ill. App. 3d 451 (2010), and People v. Minor, 2011 IL App (1st)

101097. The State maintains that “[t]he unambiguous language of the [speedy trial statute] 2

and this court’s interpretation of it in Zakarauskas [and Minor] establish that a defendant’s

failure to appear, explained or otherwise, waives his or her speedy trial demand.”

¶ 15 In response, defendant argues that the trial court did not err in granting her motion to

dismiss because she “had a valid reason for missing court dates,” namely, the decline of her

health that resulted in her hospitalization. Because her absence from court was the “result of

a genuine hospitalization,” defendant argues that it should not be treated like the absences

discussed in Zakarauskas and Minor. Instead, defendant urges this court to treat her failure

to appear in court as an”unavoidable absence” which was a “delay occasioned by the

defendant as provided for by Section 103-5(f) of the [speedy trial statute]” that merely

Our decision in People v. Minor was issued while the instant appeal was pending, and thus

2

neither party initially addressed the opinion in their opening briefs. Because this opinion is relevant

to the appeal, defendant filed a supplemental brief in which she discussed the implication of that

decision while the State addressed its implications in its reply brief.

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suspended, rather than waived, her prior speedy trial demand.

¶ 16 A criminal defendant has both a constitutional and statutory right to a speedy trial. U.S.

Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8; 725 ILCS 5/103-5 (West 2008); People

v. Staten, 159 Ill. 2d 419, 426 (1994). The Illinois speedy trial statute is codified in section

103-5 of the Criminal Code (725 ILCS 5/103-5 (West 2008)). This statute enforces a

defendant’s constitutional right to a speedy trial and courts have held that its protections are

to be liberally construed in a defendant’s favor. People v. Zeleny, 396 Ill. App. 3d 917, 919-

20 (2009); People v. Patterson, 392 Ill. App. 3d 461, 465 (2009). To establish a violation of

a defendant’s right to a speedy trial, it only needs to be established that the defendant has not

been tried within the statutory period and that the defendant has not caused or contributed

to the delay. Zeleny, 396 Ill. App. 3d at 920; Patterson, 392 Ill. App. 3d at 465. Ultimately,

the defendant bears the burden of establishing a violation of his or her speedy trial rights.

Patterson, 392 Ill. App. 3d at 467.

¶ 17 The instant appeal requires this court to interpret several provisions of the Criminal Code.

When called upon to construe a statute, the goal of a reviewing court is to ascertain and

effectuate the legislature’s intent. People v. Garcia, 241 Ill. 2d 416, 421 (2011); People v.

Cordell, 223 Ill. 2d 380, 389 (2006). The best indication of the legislature’s intent is found

in the plain language of the statute and, accordingly, statutory language should be given its

plain and ordinary meaning. Garcia, 241 Ill. 2d at 421; Cordell, 223 Ill. 2d at 389. Statutory

interpretation is a question of law, which is subject to de novo review. Garcia, 241 Ill. 2d at

421; Cordell, 223 Ill. 2d at 385-86.

¶ 18 The statutory provisions at issue here are subsections (b) and (f) of the Illinois speedy

trial statute as well as section 114-4(i) of the Criminal Code. The aforementioned speedytrial

provisions, in pertinent part, provide as follows:

“(b) Every person on bail or recognizance shall be tried by the court having

jurisdiction within 160 days from the date defendant demands trial unless delay is

occasioned by the defendant, by an examination for fitness ordered pursuant to Section

104-13 of this Act, by a fitness hearing, by an adjudication of unfitness to stand trial, by

a continuance allowed pursuant to Section 114-4 of this Act after a court’s determination

of the defendant’s physical incapacity for trial, or by an interlocutory appeal. The

defendant’s failure to appear for any court date set by the court operates to waive the

defendant’s demand for trial made under this subsection.

* * *

(f) Delay occasioned by the defendant shall temporarily suspend for the time of the

delay the period within which a person shall be tried as prescribed by subsection[ ]***

(b) of this Section and on the day of expiration of the delay the said period shall continue

at the point at which it was suspended.” (Emphases added.) 725 ILCS 5/103-5(b), (f)

(West 2008).

The last sentence in subsection (b) of the speedy trial statute that addresses waiver was added

to the statute by amendment in 2000. Pub. Act 91-123 (eff. Jan. 1, 2000); Zakarauskas, 398

Ill. App. 3d at 453; Patterson, 392 Ill. App. 3d at 466.

¶ 19 Section 114-4(i) of the Criminal Code, referenced by subsection (b) of the speedy trial

statute, in turn, provides:

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“(i) Physical incapacity of a defendant may be grounds for a continuance at any time.

If, upon written motion of the defendant or the State or upon the court’s own motion, and

after presentation of affidavits or evidence, the court determines that the defendant is

physically unable to appear in court or to assist in his defense, or that such appearance

would endanger his health or result in substantial prejudice, a continuance shall be

granted. *** Such continuance shall suspend the provisions of Section 103-5 of this Act,

which periods of time limitation shall commence anew when the court, after presentation

of additional affidavits or evidence, has determined that such physical incapacity has

been substantially removed.” (Emphasis added.) 725 ILCS 5/114-4(i) (West 2008).

¶ 20 Although no court has yet been called upon to examine the interplay between the Illinois

speedy trial statute and section 114-4(i) of the Criminal Code, this court has interpreted the

amended speedy trial statute and its effect on a defendant’s failure to appear in two recent

cases: People v. Zakarauskas, 398 Ill. App. 3d 451 (2010), and People v. Minor, 2011 IL

App (1st) 101097. In Zakarauskas, the defendant was arrested and charged with DUI and

was released on his own recognizance. The defendant made a demand for a speedy trial in

April 2006, and the cause was continued by agreement several times. On October 6, 2006,

the date the cause was set for trial, the defendant failed to appear. Defense counsel indicated

that there had been a “mix up,” but the court issued a BFW. The defendant appeared on the

next court date, October 11, 2006, filed a second demand for a speedy trial and a new trial

date was set for March 20, 2007. On that date, the defendant appeared and moved to dismiss

the case, arguing that his 160-day speedy trial term, which had commenced in April 2006,

had elapsed. The State argued that the defendant waived his April 2006 demand when he

failed to appear on October 6, 2006, and that a new term began on October 11, 2006, when

the defendant filed his second demand for a speedy trial. The trial court initially denied

defendant’s motion, but then reversed its decision upon reconsideration. The State appealed.

¶ 21 On appeal we reviewed the language of the speedy trial statute and the 2000 amendment

thereto and concluded that the trial court erred in dismissing the charges against defendant,

explaining:

“From 1977 until the 2000 amendment of section 103-5(b), a delay occasioned by a

defendant’s failure to appear in court suspended the 160-day speedy trial term.

[Citations.]

The plain language of section 103-5(b) as amended in 2000 manifested the

legislature’s intent to distinguish between a defendant’s failure to appear in court from

other types of delay, a motion for a continuance, for example, either by the defendant or

by agreement. We believe the 2000 ‘waiver’ amendment to section 103-5 controls the

disposition of this case. Waiver includes the notion of relinquishment. [Citation.]

Defendant here voluntarily relinquished his right to a trial within 160 days of his first

speedy trial demand on April 3, 2006. When defendant failed to appear he was no longer

on bail. The posted security was forfeited and a warrant was outstanding for his arrest.

*** A defendant’s failure to appear as required by recognizance constitutes a criminal

offense. [Citation.] If we were to treat a BFW incident as comparable to a request for a

continuance or other delay, a fugitive defendant would be entitled to a benefit of an

earlier speedy trial demand when apprehended and again brought before the court.”

Zakarauskas, 398 Ill. App. 3d at 454.

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¶ 22 Thereafter, this court next considered the speedy trial statute in Minor. In that case, the

defendant was also charged with driving under the influence and was released on her own

recognizance. She made her first speedy trial demand on April 21, 2009, and the trial date

was set for June 5, 2009. On that date, however, the State was not ready and requested a

continuance, and the defendant filed her second demand for a speedy trial. On August 4,

2009, the next court date, the State answered ready for trial, but the defendant failed to

appear and the court issued a BFW. The defendant appeared in court the following day,

informed the court that she had been at a doctor’s appointment and had “mixed up” the court

date, and the trial court quashed and recalled the BFW, and continued the case until October

19, 2009, on the defendant’s motion. On that date, the State sought a continuance until

January6, 2010, which the trial court granted. On January 4, 2010, before the next court date,

the defendant filed a motion to dismiss on speedy trial grounds. The defendant argued that

her right to a speedy trial had been violated when the State failed to commence trial within

160 days of her first April 21, 2009, speedy trial demand. In response, the State argued that

the defendant waived her right to a speedy trial when she failed to appear on August 4, 2009,

and that the term restarted on October 29, 2009, when she filed her second demand. The trial

court ultimately granted the defendant’s motion to dismiss, and the State filed a motion to

reconsider, citing this court’s decision in Zakarauskas. The trial court, however, denied the

State’s motion, finding Zakarauskas distinguishable because the defendantwas not a fugitive

when she appeared one day after her scheduled trial date and she provided an explanation for

her failure to appear. Because the defendant explained her absence, the trial court found that

her speedy trial period was tolled and, thus, her right to a speedy trial was violated when trial

did not commence within 160 days of her April 21, 2009, demand.

¶ 23 On appeal, we reversed the trial court’s order granting the defendant’s motion to dismiss.

In doing so, we reiterated that the “2000 amendment to the speedy trial statute clarified that

a defendant’s failure to appear in court operates as a waiver to a prior demand. [Citation.]

The legislature, therefore, distinguished failures to appear from other ‘[d]elays occasioned

by the defendant.’ ” Minor, 2011 IL App (1st) 101097, ¶ 16. Accordingly, we found that

when the defendant failed to appear in court on August 4, 2009, she waived her initial speedy

trial term that began on April 21, 2009, and that her new speedy trial term began on October

29, 2009, when she filed her new demand. Id. ¶ 15. Because the January 6, 2010, trial date

fell within 160 days of the October 29, 2009, trial demand, we concluded that the defendant’s

right to a speedy trial was not violated. Id. In doing so, we rejected the defendant’s attempt

to distinguish Zakarauskas and clarified our prior ruling, stating: “ ‘explained’ failures to

appear and ‘unexplained’ failures to appear hold no relevance where there is no such

distinction in the language of the statute. *** [I]n Zakarauskas, this court did not hold that

an explained absence was relieved of the waiver result provided by subsection (b) of the

speedy trial statute.” Id. ¶ 17. Accordingly, relying on the plain language of subsection (b)

of the speedy trial statute, we found that the fact that the defendant was able to provide the

court with an explanation for her failure to appear was not a relevant consideration in our

speedy trial waiver analysis. Id.

¶ 24 Keeping this precedent in mind, we turn to the relevant facts in the instant appeal and

find that defendant, like the defendants in Zakarauskas and Minor, waived her speedy trial

demand due to her failure to appear in court. Here, defendant made her first speedy trial

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demand on November 20, 2009, and the cause was set for trial on January 5, 2010. On that

date, however, the State was not ready for trial, and defendant filed her second demand for

a speedy trial. The trial court, at the request of the State, continued the cause to April 23,

2010. On that date, defendant was not present in court, but defense counsel addressed the

court and provided the court with a doctor’s note that stated that defendant had been admitted

to the intensive care unit at Mercy Hospital and was unable to participate in court

proceedings. Counsel then requested a continuance pursuant to section 114-4(i) of the

Criminal Code due to defendant’s documented physical incapacity, which the court granted.

Although the State suggests this was defendant’s first failure to appear that resulted in the

waiver of her speedy trial demand, we disagree. We acknowledge that defendant was not

physically present; however, defense counsel appeared on her behalf, indicated he had been

in communication with her, apprised the court and the State of defendant’s health problems,

presented a doctor’s note attesting to defendant’s impaired medical state, and requested a

continuance, which was granted without the objection of the State. Accordingly, this was not

a “failure to appear, but an absence and the grant of a motion to continue the matter, one of

the types of delay that the [Zakarauskas] court specifically addressed as not causing a waiver

under section 103-5(b).” People v. Kohler, 2012 IL App (2d) 100513, ¶ 38 (finding that the

defendant’s absence from court due to illness was not a failure to appear where defense

counsel appeared on his behalf, apprised the court and the village of the defendant’s illness,

and requested a continuance, which was granted without an objection made by the village).

¶ 25 More problematic, however, were defendant’s next two failures to appear in court on

May 18, 2010, and May 25, 2010. On both of these occasions, counsel had not been able to

communicate with defendant and did not know the reason for defendant’s absence. As a

result, the State requested the court to enter a BFW on each of the missed court dates.

Although the trial court denied the State’s request on the May 18, 2010, court date, it later

entered and continued the State’s request on the May 25, 2010, court date. The trial court

explained that it declined to issue the warrant at that time, but indicated that a warrant would

be issued if defendant failed to appear on the next court date. After these two absences,

defendant did appear at the next June 22, 2010, court date. At that time, she provided the

court with a second doctor’s note that detailed her hospitalization at RML SpecialtyHospital

to treat her acute respiratory failure and explained her court absences on May 18, 2010, and

May 25, 2010.

¶ 26 In considering the merits of defendant’s motion to dismiss on speedy trial grounds, the

trial court found the second doctor’s note to be credible and indicated that it believed that her

absences from court were “not willful”; rather, they were caused by the onset of various

health complications. Because defendant was able to explain her absences, the court granted

defendant’s motion. Although we are sympathetic to defendant’s health problems, we

reiterate that pursuant to the plain language of the speedy trial statute as well as our decisions

in Zakarauskas and Minor, when a defendant fails to appear in court for any reason,

regardless of whether he or she provides an explanation for her absence at a subsequent court

date, the defendant waives his or her demand for a speedy trial. 725 ILCS 5/103-5(b) (West

2008); Minor, 2011 IL App (1st) 101097, ¶ 17; Zakarauskas, 398 Ill. App. 3d at 454. Indeed,

a defendant cannot transform a “failure to appear” pursuant to subsection (b) of the speedy

trial statute into a “delay occasioned by defendant” outlined in subsection (f) and avoid the

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effects of waiver, simply by providing an explanation for her absence at a later court date.

See Minor, 2011 IL App (1st) 101097, ¶ 17 (“ ‘[E]xplained’ failures to appear and

‘unexplained’ failures to appear hold no relevance where there is no such distinction in the

language of the statute.”).

¶ 27 To avoid the effect of waiver, defendant should have communicated with counsel prior

to the May 18, 2010, and May 25, 2010, court dates like she did before the April 23, 2010,

court date. Indeed, section 114-4(i) of the Criminal Code expressly provides that a trial court

shall grant continuance on the grounds of physical incapacity“after presentation of affidavits

or evidence” attesting to a defendant’s physical incapacity. (Emphasis added.) 725 ILCS

5/114-4(i) (West 2008). This, defendant failed to do. Although defendant argues that she

should have been able to present the court with documentation of physical infirmity after

missing court dates due to illness, the language of section 114-4(i) is clear that continuance

may only be granted after the court receives evidence of incapacity. If this court were to

accept defendant’s argument that documentation could be presented at any time, we would

essentially have to add language to section 114-4(i). A reviewing court, however, may not

rewrite an otherwise clear statutorymandate. See In re Marriage of Rosenbaum-Golden, 381

Ill. App. 3d 65, 72 (2008) (recognizing that “[a] court may not supply omissions, remedy

defects, substitute different provisions, add exceptions, limitations, or conditions, or

otherwise change the law so as to depart from the plain meaning of the language employed

in the statute”). Accordingly, we find that when defendant failed to appear in court on May

18, 2010, and May 25, 2010, she waived her prior speedy trial demands. A new speedy trial

term commenced on September 1, 2010, when defendant filed her third demand, and the term

had not expired on October 28, 2010, when the defendant filed, and the court granted, her

motion to dismiss. Because the speedy trial term had not expired, we conclude that the trial

court erred in granting defendant’s motion.

¶ 28 In so holding, we find defendant’s efforts to distinguish Zakarauskas and Minor

unavailing. She correctlyobserves that the defendantsin both cases were not hospitalized and

that their failures to appear in court resulted in the issuance of BFWs, which were quashed

when their absences were subsequently explained to be the result of “mix ups.” However,

we decline to categorize defendant’s failure to appear as an “unavoidable absence” rather

than an “explained absence” to bypass the speedy trial statute’s waiver provision. Just as the

speedy trial statute does not provide an exception for explained absences, the statute also

makes no mention of unavoidable absences. “ ‘We will not rewrite a statute under the guise

of statutory construction or depart from a statute’s plain language by reading into it

conditions, exceptions, or limitations not expressed bythe legislature.’ ” Minor, 2011 ILApp

(1st) 101097, ¶ 17 (quoting In re M.A., 356 Ill. App. 3d 733, 737 (2005)).

¶ 29 We similarly reject defendant’s argument that this court should reach a different result

based on the interplay between the speedy trial statute and section114-4(i) of the Criminal

Code. As we stated above, the speedy trial statute of the Criminal Code, in pertinent part,

provides as follows:

“(b) Every person on bail or recognizance shall be tried by the court having

jurisdiction within 160 days from the date defendant demands trial unless delay is

occasioned by the defendant, by an examination for fitness ordered pursuant to Section

104-13 of this Act, by a fitness hearing, by an adjudication of unfitness to stand trial, by

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a continuance allowed pursuant to Section 114-4 of this Act after a court’s determination

of the defendant’s physical incapacity for trial, or byan interlocutoryappeal.” (Emphases

added.) 725 ILCS 5/103-5(b) (West 2008).

Section 114-4(i) of the Criminal Code, in turn, states:

“(i) Physical incapacity of a defendant may be grounds for a continuance at any time.

If, upon written motion of the defendant or the State or upon the court’s own motion, and

after presentation of affidavits or evidence, the court determines that the defendant is

physically unable to appear in court or to assist in his defense, or that such appearance

would endanger his health or result in substantial prejudice, a continuance shall be

granted. *** Such continuance shall suspend the provisions of Section 103-5 of this Act,

which periods of time limitations shall commence anew when the court, after presentation

of additional affidavits or evidence, has determined that such physical incapacity has

been substantially removed.” (Emphasis added.) 725 ILCS 5/114-4(i) (West 2008).

¶ 30 Defendant seizes upon the language in section 114-4(i) that provides that a continuance

granted as a result of a defendant’s physical incapacity “shall suspend the provisions of

Sections 103-5 of this Act,” and argues that her failure to appear in court as a result of her

health problems, merely suspended, rather than waived her speedy trial demand. Therefore,

when she returned to court on June 22, 2010, defendant argues, her speedy trial term began

to run again from April 23, 2010, the point at which it was initially suspended. The State,

however, responds that defendant relies upon only a portion of the language in section 114-

4(i) and ignores the remaining language in that subsection which specifies that the speedy

trial term “shall commence anew when the court *** has determined that such physical

incapacity has been substantially removed.” (Emphasis added.) 725 ILCS 5/114-4(i) (West

2008). Based on the legislature’s inclusion of the phrase “commence anew,” the State

maintains that the legislature clearly intended for a defendant’s speedy trial term to start over

in circumstances where a defendant is granted a continuance due to physical incapacitation.

Accordingly, pursuant to the State’s interpretation, defendant’s speedy trial demand term

stopped on April 23, 2010, when she first failed to appear in court due to hospitalization and

obtained a continuance, and a new term commenced on September 1, 2010, after she

recuperated from her illness and filed a third speedy trial demand.

¶ 31 We acknowledge section 114-4(i) of the Criminal Code was perhaps inartfully drafted

and that the language contained therein is ambiguous and can be subject to multiple

interpretations, namely, the two interpretations offered by the parties. Given the ambiguity

of the statute, it is permissible to look to extrinsic statutory construction aids, including

common dictionary definitions, to construe the statute. County of Du Page v. Illinois Labor

Relations Board, 231 Ill. 2d 593, 604-06 (2008). Black’s Law Dictionary defines the word

“suspend” as follows: “to interrupt; postpone; defer” and “[t]o temporarily keep (a person)

from performing a function, occupying an office, holding a job, or exercising a right or

privilege.” Black’s Law Dictionary 1584 (9th ed. 2009). Black’s Law Dictionary does not

define the phrase “commence anew” or the word “anew”; however, a definition for “anew”

can be found in Merriam-Webster’s Dictionary which defines the word as follows: “for an

additional time” and “in a new or different form.” Merriam-Webster Dictionary,

http://www.merriam-webster.com/dictionary/anew. Ultimately, we find the dictionary

definitions do not resolve the statute’s ambiguity. The statute’s use of the word “suspend”

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suggests a mere postponement or interruption of a defendant’s speedy trial demand when a

defendant becomes physically incapacitated. However, the inclusion of the phrase

“commence anew” suggests that a speedy trial demand is not simply postponed; rather, it

ends and begins in a “new or different form” when the defendant’s physical incapacity is

found to be removed. While neither the word “suspend” nor the phrase “commence anew”

is ambiguous on its own, their use in the same sentence creates ambiguity as to the

legislature’s intent on the effect of a section 114-4(i) continuance on a defendant’s speedy

trial demand.

¶ 32 We believe that the legislature’s intent is more clearly revealed by referring back to the

speedy trial statute. See People v. Rhinehart, 2012 IL 111719, ¶ 26 (recognizing that under

the doctrine of in pari materia, two statutes or two parts of one statute must be considered

with reference to each other to allow for a “ ‘harmonious’ ” interpretation of the relevant

provisions, and words and phrases should be construed with reference to other relevant

provisions and not in isolation). The word “suspend” is also used in subsection (f) of the

speedy trial statute, which details the impact on a speedy trial term as a result of delays

occasioned by a defendant. It contains the following language: “Delay occasioned by the

defendant shall temporarily suspend for the time of the delay the period within which a

person shall be tried as prescribed by 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 was

suspended.” (Emphases added.) 725 ILCS 5/103-5(f) (West 2008). It is clear that the speedy

trial statute’s use of the word “suspend” in subsection (f) means that a delay occasioned by

a defendant merely tolls the speedy trial term.

¶ 33 We find that inconsistent results would be produced if section 114-4(i) of the Criminal

Code were interpreted to mean that a speedy trial term ends, rather than is tolled, when a

defendant receives a continuance on the grounds of physical incapacity as opposed to a

continuance on any other grounds. Given that the speedy trial statute characterizes a

continuance on the grounds of physical incapacity as a “delay occasioned by the defendant”

(725 ILCS 5/103-5(b) (West 2008)), and that subsection (f) provides that such delays result

in the speedy trial period “continu[ing] at the point it was suspended” (725 ILCS 5/103-5(f)

(West 2008)), when the reason for the delay expires, the only logical interpretation of the two

statutes is that defendant’s speedy trial term was tolled on April 23, 2010, when the court

was presented with documentation that defendant was ill. When read in context with the

speedy trial statute, section 114-4(i)’s use of the phrase “commence anew” onlymakes sense

if it is interpreted to mean that a defendant’s speedy trial term continues from the date at

which it was stopped when her physical incapacity has been removed.

¶ 34 Accordingly, we agree with defendant’s interpretation of the relevant statutory

provisions; however, we disagree with their applicability to her case. As we stated above,

defendant received a continuance pursuant to section 114-4(i) on April 23, 2010, when

defense counsel presented the court with a doctor’s note attesting to her physical incapacity.

At this point, defendant’s speedy trial demand was temporarily suspended; however, by

failing to appear or communicate with her counsel or the trial court on the next two court

dates, she effectively waived her speedy trial demand that had been tolled and, thus, she was

no longer able to avail herself of the benefits of section 114-4(i). A defendant must comply

with the requirements of section 114-4(i) and provide the court with pertinent documentation

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attesting to her incapacity prior to receiving a continuance in order to avoid waiving a prior

speedy trial demand. Because defendant did not do so until after failing to appear on two

scheduled court dates, we find that defendant’s prior speedytrial demand was therebywaived

and that a new term began to run on September 1, 2010, when she was released from the

hospital, appeared in court and filed a new demand. Therefore, when the trial court granted

defendant’s motion to dismiss on October 28, 2010, the parties were only 57 days into the

new speedy trial term. We thus conclude that the trial court erred in dismissing the case on

speedy trial grounds.

¶ 35 III. CONCLUSION

¶ 36 Because we find that the speedy trial statute was not violated, we reverse the judgment

of the trial court and remand the cause with instructions to reinstate the charges against

defendant and proceed with trial.

¶ 37 Reversed and remanded.

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