## 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 . Higgenboth am , 2012 IL App (1st) 110434

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appellant, v. J OANN H I GGENB OTHAM, De fenda nt-Appellee

.

District & N o. First District, F ourth Division Docke t No. 1-11-0434

Filed Rehea ringdenied J une 28, 2012

J uly 24, 2012

Held (Note : This syl lab us

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

par ed by the Re

p ort 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

. ) A d ef endant’ s absenc e from court due to phy sical incapa citati o n supported a temporar

y suspension of the running of the speedy trial period, but her subsequent failure s to appea r without prior communication with her counsel or the court operated as a waiver of the demand such that a new term beg an to run when she nex t appea red and demande d a spee dy

trial.

Dec ision Under Review Appea l from the Circuit Court of Cook County
, Nos. TP-311029, TP311030, TP-3 1 1 0 31, TP-311032, TP-311033; the Hon. Thomas L yons, J udg e, pre siding.

J udg ment Reverse d and re manded.Counsel on

Appea l An i t a M. Alvare z, State’s Attorney
, of Chicag o (Alan J

. Spellberg
, Ver onica Calderon Malavia, and Kalia M. Coleman, Assi s t ant State’s Attorney s, of counse l), for the People.

Abishi C. Cunningham, J r., Public De fe n d er, of Chicag o (Ha rold J

. Wins ton, Assistant P ublic Def ender , of counse l), for a

ppellee.

Panel J USTI CE PUCI NSKI delivere d the judgme nt of the court, with opinion. Presiding J ustice L avin and J ustice Sterba concur red in the judgme nt and opinion.

OP INION

¶ 1 The State appea ls an order of the circ uit court g ranting defe ndant J oann Hig g enbotham’s motion to dismiss multipl e traff ic law violations on speedy trial g rounds. On appea l, the State
argues that the circ uit court’s order fails to acc ord with the plain languag e of the speedy trial
statute (725 I L CS 5/103-5(b ) (W est 2008)) as well as rele vant case law interpre ting that provision. For the rea sons expl ained he rein, we reve rse the judgment of the c ircuit court.

¶ 2 I . BA CKGROUND ¶ 3 On Fe bruar

y 23, 2008, defe ndant was arr ested and char g ed with multip l e t ra ff i c l aw violations, including: failure to rende r aid (625 I L CS 5/11-403 (West 2008)); operating a motor vehicle without insurance (625 I L CS 5/3-707 (We s t 2008)); driving under the influence (625 I L CS 5/11-501(a) (4) (West 2008)); driving on a suspended license (625 I L CS 5/6-303(a) (West 2008)); and leaving the scene of an acc ident inv o l v i n g an unattended vehicle ( 625 I L CS 5/ 11-404 (West 2008)). ¶ 4 Following her arr est, defe ndant was rele ased on her o wn re co gnizance with bail set at $3,000. Def

endan t fa iled to appea

r i n court on Marc h, 20, 2008, her init ial court date, and the court issued a bond forf eiture war rant (B FW). The trial court subsequently quashed and

rec alled the BF W when defe ndant appea red on the judgme nt date. Another BF W was enter ed

on J uly 10, 2008, when defe ndant failed to appea r in court a second time, b u t wa s l at er quashed and rec alled when she appea red on the judgme nt date. There afte r, the cause was set for trial on October 30, 2008. Def endant, howeve r, failed to appea r on the trial date and the trial court issued a third BF W. This BF W was also subsequently quashed and rec alled when defe ndant appeare d in court on the j udg ment date. The trial date wa s t h en resc heduled for J anuar y 21, 2009. On that date, both parties enter ed appea ranc es but neither party answe red

rea dy for trial, and a new trial date of Mar ch 25, 2009, wa s set by agree ment. On that date, the trial court called the case but defe ndant was not prese nt and the court issued y et another BF W. Def

endant did a

ppear in court later that day
, howeve r, and at that time the BF W was quashed and rec alled and the parties agree d to a new trial date: J une 9, 2009. Def endant,

-2-howeve r, failed to a ppear on the J une 9, 2009, trial date and another BF W wa s enter ed and the cause continued to J une 23, 2009. Def endant a lso failed to appear in court on J une 23, 2009, and the c ourt issued a sixt h BF W. ¶ 5 By agree ment, the parties set a new trial date for November 20, 2009. On this court date, defe ndant answe red rea dy for trial but the State answe red not rea dy

. Def endant immediately filed her first demand for a speedy trial and the cause was continued to J anuar y 5, 2010. On that date, both parties appea red in court but the State answe red n o t re ad y for trial and defe ndant filed her second written demand for a speedy trial. The cause was then continued
to April 23, 2010, at the reque st of the State

. On that date, defe ndant was not prese nt and defe nse counsel informed the court that she had been hospitaliz ed in the intensive car e unit
at Merc y Hospital. Def

ense counsel then provided the court and the State with a note written by defen d an t ’s treating phy sician that stated: “To whom it may conce rn: This letter is to

cer tify that Ms. J oann Hig g enbotham (DOB 11/29/42) is curr ently admitted to Merc y Hospital Intensive Care Unit and wi l l [be] unable to participate in schedule d court case .” Def ense counsel thus soug ht a continuance pursuant to section 1 1 4 -4 (i ) of the Code of Criminal Procedur e of 1963 (Criminal Code) (725 I L CS 5/114-4(i) (West 2008)), as a result of defe ndant’s documented phy sical incapa city

. Given defe ndant’s m ed ical state, the trial
court g rante d defe ndant’s motion for a continuance until May 18, 2010. Be cause the case was “on term” the State also soug ht leave for an additional 21 day s to be added to the speedy trial term, and the court instructe d the State to “ar gue it on the next court date.” 1 ¶ 6 On May 18, 2010, defe ndant failed to appea r in court. Def

ense coun s el i n fo rm ed the
court that she had been unable to rea ch defe ndant or any member of defe ndant’s family since defe ndant’s hospitaliz ation and reque sted the court to continue the cause for one wee k. The State objected to defe nse counsel’s reque st for a continuance and reque sted the court to issue another BF W. The trial court denied the State’s war rant reque st but indicated it would issue

a war rant if defe ndant failed to a ppear on the next cour

t da te. The court then continued the

case to May 25, 2010. On that date, defe ndant failed to appea r in court once ag ain. Def ense counsel had no information about defe ndant’s wher eabouts and the State rene wed its reque st for a BF W. T h e co u rt instructed defe nse counsel to “[g]et letters out to ever y body” and
enter ed and continu ed t h e State’s reque st for a BF W. The court indicated that the war rant would be issued on the next court date if defe ndant failed to appea r. The trial cou rt then continued the c ause to June 22, 2010. ¶ 7 On that date, defe ndant appea red and prese nted the court with another doctor’s note that stated that she had been hospitaliz ed at RML Specialty Hospital for acute respiratory failure from May 4, 2010, to J une 2, 2010, which served to explain her two most rec ent absences from court. The parties then agree d to a n ew trial date: September 1, 2010. On that date,

T he 21- day ext ens ion was never ar gued at a sub seq uen t cou r t d a t e ; however
, it doe s not 1 impact the dec is ion as bot h par ti es agree tha t an add it ion al 21 days woul d have had no ef fe ct on the cal cul at ion s tha t ar e par t of t h e ins ta nt app eal

. By de fe nda nt’ s cal cul at ion
, the Sta te exc eed ed the
spe edy tr ia l te rm by 57 days, re nde ri ng a 2 1 -da y ext ens ion imm at er ia l. Pur sua nt to the Sta te ’s

ar gum ent , the def

end ant wai ved her spe edy tr ia l demand and a new te rm comm enc ed on Sept ember 1
, 2010
, when she fi le d her thi rd demand, and thu s it s pri or re que st for an ext ens ion was of n o

con seq uen ce.

-3-howeve r, the State ag ain answe red not r eady for trial and de fenda nt filed her third de mand for a speedy trial. At the State’s re quest, the ca use wa s continued to October 28, 2010. On the October 28, 2010, trial date, the State answe red rea dy bu t d ef en d ant filed a motion to dismiss
, alleg ing that her right to a speedy trial had been violated. In her motion, defe ndant observe d that she had filed her first demand for a speedy trial on November 20, 2009, and that as of October 28, 2010, 210 day s had passed since her first demand, which far exceede d the 160-day time limit ation set forth in the speedy trial st at u t e. De fendant calc ulated her speedy trial term as f

ollows:
“Nove mber 20, 2009 to January 5, 2010 (46 day s)
J anuar y 5, 2010 to April 23, 2010 (107 day s) September 1, 2010 to Oc tober 28, 2010 (57 da y s) Total: 210 day s” ¶ 8 The trial c ourt conduc ted a hearing on defe ndant’s motion that day . At the hea ring , the State calc ulated defe ndant’s speedy trial term to be 57 day s. The State argued that the term had started over on September 1, 2010, when defe ndant made her third demand for a speedy trial. To support its calc ulation, the State cited section 103-5 of the speedy trial statute (725 I L CS 5/103-5 (West 2008)) and this court’s decision in People v. Zakarauskas
, 398 I ll. App. 3d 451 (2010), and argued that a defe ndant’s failure to appea r in court operates as a waiver of her demand for a speedy trial. Be cause defe ndant failed to appea r at three schedule d court dates during her i llness, the S tate argued that defe ndant’s prior speedy t ri al demands were waived. ¶ 9 Def

endant disputed the State’s interpre tation of rele vant case law and statutory authority

. Specifica lly
, defe ndant argued that pursuan t to this court’s ruling in Zakarauskas
, waiver

o n l y o ccurs wher e a defe ndant’s absenc e is unexplained. Be cause defe ndant provided the
court with doctors’ notes and explained her failure s to ap p ea r, d efe ndant argued that her speedy trial term was mere ly tolled during the dates of her hospitaliz ation. To further support h er argument, defe ndant direc ted the court to section 114-4(i) of the Criminal C o d e (7 2 5 I L CS 5/114-4(i) (West 2008)) and arg ued th at p u rs u ant to that provision, a defe ndant’s phy sical incapa city mere ly suspends, rathe r than waives, a defe ndant’s demand for a speedy trial. ¶ 10 After hear ing the arg uments of the parties, the court g ranted d ef en d an t ’s motion to dismiss . In doing so, the court stated: “[Defe ndant] was hospitaliz ed. *** And I have no rea son to believe she was beling ering [ sic ]. I think she probably was in di re need of serious m edica l treatment. State, I know this is a drac onian, that the relief soug ht by the Def ense is very drac onian in this case but I can also see why [defendant] in her fra g ile state would have been anxious to g et t h is

case rele ased and at her attorney s urg ing g et t h e ca s e fo r trial. I do have, I have been satisfi ed with the documentation provided *** on behalf of [defendant] that she was incapa citated and hospitaliz ed and to no fault of her own missed court. And t h er efore, Iam re luctant to find that the dela y was oc casione d by

the def endant.” ¶ 11 The State subsequently filed a motion to rec onsider the court’s dismiss al. After hear ing the arguments o f t h e parties, the court denied the State’s motion. The court explained its rationale as follows:

-4-“[T] he State is urg ing me to fee l [ sic ] that [defendant’ s] failure to appea r when she was in the intensive car e unit should operate at the eff ect of a bond forf

eiture war rant wher e she voluntarily relinquished her rig ht to a speedy trial by failing to a ppear in court, and that the [S ]t ate should g et a[n] entire new ter m. The Def ense urg es me to treat that failure to appea r beca use she was in the intensive

car e unit as a motion defe ndant s omething that would simply toll the t erm. I think that

acc urate ly

descr ibes both parties[’] posi tions and Ithink that was discussed last time.
There are a couple of unusual twists in this case . The fa ct that therewas a repe ated
reque st for a bond f

orfe iture wa

rra nt, it was entere d and continued but the war rant wa s

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

***
Neve r the less [ sic ], afte r car efully considering all of the evidenc e and the arguments made by counsel and car efully revie wing the State’s motion to rec onsider, and ag ain revie wing the appropr iate case law, I see nothing new, no new arguments to persua de me that Ihave e rre d, my

initial inclination was in error.
I do fee l that the defe ndant’s failure to a ppear beca

use she was in the intensive car e unit and the phy sical observation, the in-court observation made by this Court about the defe ndant’s obvious phy sical difficulties in health conce rns which preve nted her from coming to court we’ re [ sic ] not willful and she did not voluntarily relinquish the rig ht to a spee dy trial.” ¶ 12 This appea l followed.

¶ 13 I I . ANALYSI S ¶ 14 On appea l, the State argues that defe ndant waived her demand for a speedy trial when she failed to appea

r in court on three consec utive co u rt dates, and thus, the trial court err ed in
g ranting defe ndant’s motion to dismiss

. In support, the State cites to section 103-5(b) of the speedy trial statute (725 I L CS 5/103-5(b) (West 2008)) and this court’s decisions in People

v. Zakarauskas
, 398 I ll. App. 3d 451 (2010), and People v. Minor
, 2011 I L App (1st) 101097. The State maintains that “[t] he unambiguous languag e of the [speedy trial statute]

2 and this court’s interpre tation of it in Zakarauskas [and Minor ] establish that a defe ndant’s failure to appea

r, explained or other

wise, wa ives his or her spe edy trial demand.” ¶ 15 In response , defe ndant argues t h at t h e trial court did not err in g ranting her motion to dismiss beca

use she “had a valid rea son for missing court dates,” namely
, the decline of her health that resulted in her hospitaliz ation. Be cause her absenc e from court was the “re sult of a genuine hospitaliz ation,” defenda nt argues t hat i t should not be treated li ke the absenc es discussed in Zakarauskas and Minor

. Instead, defe ndant urg es this court to treat her failure
t o ap p ea r in court as an”una voidable absenc e” which was a “dela y occa sioned by the defe ndant as provided for by Section 1 0 3 -5 (f) of the [speedy trial statute]” that mere ly

Our dec is ion in Peop le v. Mi nor was is sue d whil e the ins ta nt app eal was pen din g, and thu s 2 nei the r par ty ini ti al ly add re sse d the opi nio n in the ir ope nin g bri ef s. Beca use thi s opi nio n is re le vant to the app eal
, def

end ant fi le d a sup ple m ent al bri ef in whic h she dis cus sed the implic a t i o n o f t h at dec is ionwhi le th e St at e a ddr ess ed i ts impli cat ion s i n i ts re ply br ie f.

-5-suspended, r ather than waive d, her pr ior speedy trial demand. ¶ 16 A criminal defe ndant has both a constitutional and statutory rig ht to a speedy trial. U.S. Const., amends. VI
, XIV; I ll. Const. 1970, art. I
, § 8; 725 I L CS 5/103-5 (West 2008); People

v. Staten
, 159 I ll. 2d 419, 426 (1994). The I llinois speedy trial statute is codified in se ction 103-5 of the Criminal Code (725 I L CS 5/103-5 (West 200 8 ))

. This statute enfor ces a defe ndant’s constitutional rig ht to a speedy trial and courts have held that its protec tions are to be liberally construed in a defe ndant’s favor

. People v. Zeleny
, 396 I ll. App. 3d 917, 919- 20 (2009); People v. Patterson
, 392 I ll. App. 3d 461, 465 (2009). To establish a violation of

a defe ndant’s rig ht to a speedy trial, it only needs to be established that the defe ndant has not been tried within the s tatutory period and that the defendant has not caus ed o r contributed
to the delay

. Zeleny
, 396 I ll. App. 3d at 920; Patterson
, 392 I ll. App. 3d at 465. Ultimately
, the defe ndant bear s the burden of establishing a violation of his or h er s p ee d y t ri al rig hts. Patterson , 392 I ll. App. 3d at 467. ¶ 17 The instant appea l require s th is c o u r t to interpre t sever al provisions of the Criminal Code. When called upon to construe a s t at u t e, t h e g oal of a revie wing court is to asce rtain and eff ectuate t he legislature ’s i ntent. People v. Garcia
, 241 I ll. 2d 416, 421 (2011); People v. Cordell
, 223 I ll. 2d 380, 389 (2006). The best indication of the leg islature’s intent is found in the plain languag e of the statute and, acc ording ly
, statutory languag e should be g iven its plain and ordinary meaning

. Garcia
, 241 I ll. 2d at 421; Cordell
, 223 I ll. 2d at 389. Statutory interpre tation is a question of law, which is subject to de novo revie w. Garcia
, 241 I ll. 2d at 421; Cordell , 223 I ll. 2d at 385-86. ¶ 18 Th e s t at u t o ry provisions at issue here are subsections (b) and (f) of the I llinois speedy trial statute as well as section 114-4(i) of the Criminal Code. The afor ementioned speedy trial provisions, in pertinent part, provide as follows: “(b) Every person on bail or rec og nizan ce s h al l be tried by the court having jurisdiction within 160 day s from the date defen d an t demands trial unless delay is

occa sioned by the defe ndant, by an examination for fitness order ed pursuant to Sec tion 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 ap p eal. The defendant’

s f a i lure to appear f

or any court date s et by the court operates to waive the defendant’s de mand for trial made under this subsection

. * * * (f) Delay occa sioned by

the def endant shall temporar ily suspend for the time of the delay the per iod within which a per son shall be tried as pr escr ibed 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.” (Emphase s added.) 725 I L CS 5/103-5(b), (f) (West 2008). The last sentenc e in subsection (b) of the speedy trial statute that addre sses waiver was added
to the statute by amendment in 2000. Pub. Act 91-123 (ef f. J an. 1, 2000); Zakarauskas
, 398 I ll. App. 3d at 453; Patterson , 392 I ll. App. 3d at 466. ¶ 19 Section 114-4(i) of the Criminal Code, ref ere nced by

subsection (b) of t he speedy trial statute, in turn, provides:

-6-“(i) Phy sical incapa city of a defe ndant may be g rounds for a continuance at any time. I f, upon written motion of the defe ndant or the State or upon the court’s own motion, and afte r prese ntation of aff

idavits or evidenc e, the court deter mines that the defe ndant is phy sically unable to appea r i n court or to assist in his defe nse, or that such appea ranc e would endang er his health or result in substantial p rejudice, a continuance shall be
g rante d. *** Such continuance shall suspend the provisions ofSection 103-5 of this Act, which periods of time limitati on shall comme nce anew when the court, afte r prese ntation of additional aff

idavits or evidenc e, has deter mined that such phy sical incapa city has been substantially

remove d.” (Empha sis added.) 725 I L CS 5/ 114-4(i) ( West 2008). ¶ 20 Although no court has y et been called upon to examine the interplay betwee n the I llinois speedy trial statute and section 114-4(i) of the Criminal Code, this court has interpre ted the amended s p eedy trial statute and it s eff ect on a defenda

nt’s failure to appea

r i n two rec ent

case s: People v. Zakarauskas
, 398 I ll. App. 3d 451 (2010), and People v. Minor
, 2011 I L App (1st) 101097. In Zakara u s ka s , t h e defe ndant was arr ested and char g ed with DUI and was release d on his own recognizance. The defe ndant made a demand f

or a spe edy

trial in April 2006, and the c ause w as continued by agree ment sever al times. On Octobe r 6, 2006, the date the cause was set for trial, the defe ndant failed to appea r. Def ense counsel indicated that there had been a “mix up,” but the court issued a BF W. The defe ndant appea red on the next court date, Oc tober 11, 2006, filed a second demand for a spee dy trial and a

new tria l date was set for Marc h 20, 2007. On that date, the defe ndant appea red and moved to dismiss the case, arguing that his 160-day speedy trial term, which had commenced in April 2006, had elapse d. The State argued that t h e d ef endant waived his April 2006 demand when he failed to appea

r on October 6, 2006, and that a new term beg an on October 11, 2006, when the defe ndant filed his second demand for a speedy trial. The trial court initially denied defe ndant’s motion, but then reve rsed its decision upon rec onsideration. The State appea led. ¶ 21 On appea l we revie wed the languag e of the speedy trial statute and the 2000 amendment there to and conclude d that the trial court err ed in dismiss ing the charg es ag ainst defe ndant, explaining:
“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.]
T h e p l ai n languag e of section 103-5(b) as amende d in 2000 manifested the leg islature’s intent to distinguish betwe en a defe ndant’s failure to appea r in court f

rom other ty pes of delay
, a motion for a continuance
, for example, either by the defe ndant or by agree ment. We believe the 2000 ‘wa iver’ amendment to section 103-5 controls the dispositi o n o f this case

. Waiver includes the notion of relinquishment. [C itation.] Def endant here voluntarily relinquished his rig ht to a trial wi t h i n 1 60 day s of his first speedy trial demand on April 3, 2006. When defe ndant failed to appea r he was no longe r

on bail. The posted secur ity was for feited a

nd a wa rra nt was outstandingfor his arr est. *** A defendan t ’s failure to appea r as require d by rec ognizance constitutes a criminal offe nse. [C itation.] I f we wer e to treat a B FW incident as compar able to a reque st f or a continuance or other delay
, a fug itive defe ndant would be entitled t o a b en ef i t of an earl i er speedy trial demand when appre hended and ag ain brought befor e the court.” Zakarauskas , 398 I ll. App. 3d at 454.

-7-¶ 22 There afte r, this c ourt next consider ed the speedy trial statute in Minor

. In that case , the

defe ndant was also char g ed with driving under the influence and was rele ased on her o wn

rec og nizance. S he made her first speedy trial demand on April 21, 2009, and the trial date

was set for J une 5, 2009. On that date, howeve r, the State was not rea dy and reque sted a cont i nu ance, and the defe ndant filed her second demand for a speedy trial. On August 4, 2009, the next court date, the State answe red rea dy for t ri al
, but the defe ndant failed to appea r and the court issued a BF W. The defe ndant appea red in court the following day
, informed the court that she had been at a doctor’s appointment and had “mix ed up” the court date, and the trial court quashed and rec alled the BF W, and continued the case until October 19, 2009, on the defe ndant’s motion. On that date, the State soug ht a co n tinuance until J anuar y 6, 2010, which the trial court g rante d. On J anuar y 4, 2010, befor e the next court date, the defe ndant filed a motion to dismis s on speedy trial g rounds. The de fenda nt a rgued that her rig ht to a speedy trial had been violated when the State failed to commence trial within 160 day s of her first April 21, 2009, speedy trial demand. In response , the State argued that the defe ndant waived her rig ht to a speedy trial when she failed to appea r on August 4, 2009, and that the term restar

ted on October 29, 2009, when she filed her second demand. The trial court ult imately g rante d the defendant’s moti on to dismiss
, and the State filed a motion to

rec onsider, citing this court’s decision in Zakarauskas

. The trial court, howeve r, denied the St ate’ s motion, finding Zakarauskas distinguishable beca use the defe ndant w a s n o t a f u g itiv e when she appea

red one day afte r her schedule d trial date and she provided an explanation for her failure to appea

r. Be cause the defe ndant explained her absenc e, the trial court found that her speedy trial period was tolled and, thus, her rig ht to a speedy trial was violated when trial did not commence w ithin 160 day s of her April 21, 2009, demand. ¶ 23 On appea l, we reve rsed the trial court’s order granting the defe ndant’s motion to dismiss. In doing so, we reiter ated that the “2000 amendment to the speedy trial statute clar ified that

a d ef en d an t ’s failure to appea

r i n court operates as a waiver to a prior demand. [ Citation.] The leg islature, ther efor e, distinguished f ailures to appear

from other

‘[d] elay s occa sioned by the defe ndant.’ ” Minor
, 2011 I L App (1st) 101097, ¶ 16. Acc ording ly
, we found that when the defe ndant failed to appea r in court on August 4, 2009, she waived her initial speedy trial term that beg an on April 21, 2009, and that her new speedy trial term beg an on October 29, 2009, when she filed her new de mand. Id . ¶ 15. Be cause the J anuar y 6, 2010, trial date fell within 160 day s of the October 29, 2009, trial demand, we conclude d that the defe ndant’s rig ht to a speedy trial was not violate d. Id

. In doing so, we reje cted the defe ndant’s attempt to distinguish Zakarauskas and clar ified our prior ruling
, stating: “ ‘explained’ failure s to appea r and ‘unexplai n ed ’ fa i l ures to appea r hold no rele vance wher e there is no such distinction in the languag e of the statute. *** [I ]n Zakarauskas
, this c ourt did not hold that

an ex p l ai ned absenc e was relieve d of the waiver result provided by subsection (b) of t h e speedy trial statute.” Id. ¶ 17. Ac cording ly , rely ing on the plain languag e of subsection (b) of the speedy trial statute, we found that the fac t that the defe ndant was a ble to provide the
court with an explanation for her failure to appea r was not a rel ev an t consideration in our speedy trial waive r ana ly sis. Id

. ¶ 24 Kee ping this prec edent in mind, we turn to th e re l ev an t fac ts in the instant appea l and find that defe ndant, like the defe ndants in Zakarauskas and Minor
, waived her speedy trial demand due to her failure to appea r in court. Her e, defe ndant made her fi rs t speedy trial

-8-demand on November 20, 2009, and the cause was set for trial on J anuar y 5, 2010. On that date, howeve r, the State was not r eady for trial, and defe ndant filed her second demand for

a speedy trial. The trial court, at the reque st of the State, continued the cause t o Ap ri l 2 3
, 2010. On that date, d ef

en d an t was not prese nt in court, but defe nse counsel addre ssed the
court and provided the court with a doctor’s note that stated that defe ndant had been admitted
to the intensive car e unit at Merc y Hospita l and was unable to participate in court proce eding s. Counsel then requ es t ed a continuance pursuant to section 114-4(i) of the Criminal Code due to defe ndant’s documented phy sical incapa city
, which the court g rante d. Although the State sug g ests this was defenda nt’s first failure t o ap pear that resulted in the waiver of her speedy trial demand, we disa gre e. We acknow ledg e that defe ndant was not phy sically prese nt; howeve r, defe nse counsel appea red on her behalf

, indicated he had been in communication with her, apprised the court and the State of defe ndant’s health problems,
prese nted a doctor’s note attesting to defe ndant’s impaired medical sta t e, an d reque sted a continuance
, which was g rante d without the objection of the State. Acc ording ly
, this was not

a “fa ilure to appea

r, but an absenc e and the g rant of a motion to continue the matter, one of the ty pes of delay that the [ Zakarauskas ] court specific ally addre ssed as not causing a waiver under section 103-5(b) .” People v. Kohler
, 2012 I L App (2d) 100513, ¶ 38 (finding that the defe ndant’s absenc e from court due to illness was not a fai l u re to appea r wher e defe nse counsel appea

red on his behalf

, apprised the court and the village of the defe ndant’s illness, and reque sted a continuance
, which was g rante d without an objection made by the village ). ¶ 25 M o re p ro b l em atic, howeve r, wer e defe ndant’s next two failure s to appea r in court on May 18, 2010, and May 25, 2010. On both of these occa sions, counsel had not been able to communicate with defe ndant and d i d n o t know the rea son for defe ndant’s absenc e. As a result, t h e S t ate reque sted the court to enter a BF W on eac h of the missed court dates. Although the trial court de nied the State’s r equest on the Ma y 18, 2010, court date, it later
enter ed an d co n t i n u ed the State’s reque st on the May 25, 2010, court date. The trial court explained that it declined to issue the war rant at that time, but indicated that a war rant would be issued if defe ndant fail ed to appea r on the next court date. After these two absenc es, def en d ant did appea

r at the next J une 22, 2010, court date. At that time, she provided the
court with a second doctor’s note that detailed her hospitaliz ation at RML Specialty Hospital
to treat her acute respiratory failure and explained her court absenc es on May 18, 2010, and May 25, 2010. ¶ 26 In considering the merits of defe ndant’s motion to dismiss on speedy trial g rounds, the trial court found the second doctor’s note to be cre dible and indicated that it believed that her absenc es from court wer e “not willful”; rathe r, t h ey we re caused by the onset of various health complications. Be cause defe ndant was able to explain her absenc es, the court g rante d d efe ndant’s motion. Although we are sy mpathetic to defe ndant’s health problems, we reiter ate that pursuant to the plain languag e of the speedy trial statute as well as our decisions i n Z a ka r a u skas and Minor
, when a defe ndant fails to appea r in court for any rea son, reg ardle ss of whether he or she provides an explanation for her absenc e at a subsequent court date, the defe ndant waives his or her demand for a speedy trial. 725 I L CS 5/103-5(b) (West 2008); Minor
, 2011 I L App (1st) 101097, ¶ 17; Zakarauskas
, 398 I ll. App. 3d at 454. Indeed,

a defe ndant cannot transfor m a “fa ilure to a

ppear ” pursuant to subse ction (b) of the speedy trial statute into a “dela

y occa sioned by defe ndant” outlined in subsection (f) and avoid the

-9-eff ects of waiver
, simply by providing an ex planation for her abs en ce at a later court date. See Minor
, 2011 I L App (1 s t ) 101097, ¶ 17 (“ ‘[E] x plained’ failure s to appea r and ‘unexplained’ failure s to appea r hold no rele vance wher e there is no such distinction in the languag e of the statute.”). ¶ 27 To avoid the eff ect of waiver
, defe ndant should have communicated with counsel prior to the May

18, 2010, and May 25, 2010, court dates like she did be fore the April 23, 2010,
court date. Indeed, section 114-4(i) of the Criminal Code expressly provides that a trial court shall g rant continuance on the g rounds of phy sical incapa city “ after prese ntation of aff idavits

or evidenc e” attesting to a defe ndant’s phy sical incapa city

. (Em p h as i s added.) 725 I L CS 5/114-4(i) (West 2008). This, defe ndant failed to do. Although defe ndant argues that she should have been able to prese nt the court with documentation of ph y sical infirmity afte r missing court dates due to illness, the languag e of section 114-4(i) is clea r that continuance
may o n l y b e grante d afte r the court rec eives evidenc e of incapa city

. I f this court wer e to

acc ept defe ndant’s argument that documentation could be prese nted at any time, w e would essentially have to add langua g e to section 114-4(i). A reviewingcourt, howe ver, ma y not

rewrite an otherwise clea

r statutory mandate. See In re Marriage of Rosenbaum- Golden
, 381 I ll. App. 3d 6 5
, 7 2 (2 008) (re cognizi ng that “[a] court may not supply omissions
, reme dy defe cts, substitut e differ ent provisions, ad d ex ceptions, limit ations, or conditions, or otherwise chang e the law so as to depar t from the plain meaning of the languag e employ ed in the statute”). Acc ording ly
, we find that when defe ndant failed to appea r in court on May 18, 2010, and May 25, 2010, she waived her prior speedy trial demands. A new speedy trial
term commence d on September 1, 2010, when defe ndant filed her third demand, and the term had not expired on October 28, 2010, when the defe ndant fil ed
, an d the court g rante d, her motion to dismiss

. Be cause the speedy trial term had not expired, we conclude that the trial
court e rre d in gr antingdefe ndant’s motion. ¶ 28 I n s o h o l d i n g , we find defe ndant’s eff orts to distinguish Zak

a r a u s ka s an d Mi n o r unavailing

. She corr ectly observe s that the defe n d a nts in b oth case s wer e not hospitaliz ed and that their failure s to a

ppear in c ourt resulted in the issuance of B FWs, which wer e quashed when their ab s en ce s wer e subsequently explained to be the result of “mix ups.” However,

we decline to cate go ri z e defe ndant’s failure to appea r as an “unavoida

ble absenc e” rathe r than an “explained absenc e” to by pass the speedy trial statute’s waiver provision. J ust as the speedy trial statute does not provide an exception for explained absenc es, the statute also makes no mention of unavoidable absenc es. “ ‘We will not rewrite a statute under the guise of statutory construction or depar t from a statute’s p l ai n l an guag e by rea ding into it conditions, exceptions, or limit ations not expressed by the leg islature.’ ” Minor
, 2011 I L App (1st) 101097, ¶ 17 ( quoting In re M .A. , 356 I ll. App. 3d 733, 737 (2005)). ¶ 29 We simi larly

reje ct defendant’s argument that this court should re ach a differ ent re sult based on the interplay

betwee n the s peedy trial statute and section114-4(i) of the C riminal C ode. As we stated above, the speedy trial statute of the Criminal Code, in pertinent p ar t , provides as f

ollows: “(b) Every person on bail or rec o gn i z an ce shall be tried by the court having jurisdiction within 160 day s from the date defe nd an t demands trial unless delay is occasione d by the defendant
, by an examination for fitness order ed pursuant to Section 104-13 of this Act, by a fitness hearing, by an adjudication of unfitness to stand trial, by

-10-a continuance allowedpursuant to Section 114-4 ofthis Act after a court’s determination ofthe defendant’s physical incapacity for trial
, or by an interlocutory ap p e a l. ” ( E mp h a s es added.) 725 I L CS 5/ 103-5(b) (West 2008). Section 114-4(i) of

the Criminal Code, in turn, states: “(i) Phy sical incapa city of a defe ndant may be g rounds for a continuance at any time. I f, upon written motion of the defe ndant or the State or upon the court’s own motion, and afte r prese ntation of aff

idavits or evidenc e, the court deter m ines that the defe ndant is phy sically unable to appea r i n court or to assist in his defe nse, or that such appeara nce would endang er his health or result in substantial prejudice
, a con t inuance shall be
g rante d. *** Such continuance shall suspend the provisions of Section 103-5 of this Act, which p e r io d

s o f tim e limitati ons shall comme nce anew when the court, afte r prese ntation of additional aff

idavits or evidenc e, has deter mined that such phy sical incapa city has been substantially

remove d.” (Empha sis added.) 725 I L CS 5/ 114-4(i) ( West 2008). ¶ 30 Def

endant seizes upon the languag e in section 114-4(i) that provides that a continuanc e g rante d as a result of a defe ndant’s phy sical incapaci t y “shall suspend the provisions of Sections 103-5 of this Act,” a nd argues that her failure to appea r i n court as a result of her health problems, mere ly suspended, rathe r than waived her speedy trial demand. There fore
, when she returne d to court on J une 22, 2010, defe ndant argues, her speedy trial term beg an t o run ag ain from April 23, 2010, the point at which it was initially suspended. The State
, howeve r, responds that defe ndant relies upon only a portion of the languag e in section 114- 4(i) an d i gn ores the rema ining langua g e in that subsection which specifie s that the s peedy trial term “ shall comme nce anew when the court * * * has deter mined that such phy sical incapa city has been substantially remove d.” (Emphasis added.) 725 I L CS 5/114-4(i) (West 2008). Ba sed on the leg islatu re’ s inclusion of the phrase “commenc e anew ,” the State maintains that the leg islature clea rly intended for a defe ndant’s speedy trial term to start over in circ umstances wher e a defe ndant is g rante d a continuance due to phy sical incapa citation. Acc ording ly
, pursuant to the State’s interpre tation, defe ndant’s speedy trial demand term stopped on April 23, 2010, when she first failed to appea r in court due to hospitaliz ation and obtained a continuan ce , an d a new term commence d on September 1, 2010, afte r she

rec uperated from he r illness and filed a third speedy

trial demand. ¶ 31 We acknow ledg e section 114-4(i) of the C riminal Code was perhaps inartfull y draf ted and that the languag e contained there in is ambiguous and can be subject to multipl e interpre tations, namely
, the two interpre tations of fer ed by the parties. Give n the ambiguity of the statute, it is permissible to look to extrinsi c statutory construction aids, including

common dictionary definitions, to construe the statute. County ofDu Page v. Illinois Labor Relations B oard
, 231 I ll. 2d 593, 604-06 (2008). B lack’ s L aw Dic tionary define s the word “suspend” as follows: “to interrupt; postpone; defe r” and “[t] o temporar ily keep (a person) from perfo rm i n g a function, occupy ing an office
, holding a job, or exercising a rig ht or privileg e.” Blac k’s L aw Di ct i onary 1584 (9th ed. 2009). Bla ck’s L aw Dictionary does not define the phrase “commenc e anew ” or the word “ane w”; howeve r, a definition for “ane w” can be found in Merr iam-Webster’s D ictionary which define s the word a s follows: “for a n additional time” and “in a new or differ ent form.” Merr iam-W eb s t er Dictionary
, http:// www.mer

riam -we bster.com/dictionar y /anew. Ultimately
, we find the dictionary definitions do not resolve the statute’s ambiguity . The statute’ s use of the word “suspend”

-11-sug g ests a mere postponement or interruption of a defe ndant’s speedy trial demand when a

defe ndant become s phy sically incapa citated. Howeve r, the inclusion of the phrase “commenc e anew ” sug g ests that a s p eedy trial demand is not simply postponed; rathe r, it ends and beg ins in a “new or differ ent fo rm ” when the defe ndant’s phy sical incapa city is found to be re moved. While neither the word “suspend” nor the phrase “commenc e anew ” is ambiguous on its own, their use in the s am e sentenc e cre ates ambiguity as to the leg islature’s intent on the effec t of a sec tion 114-4(i) continuance on a defenda nt’s speedy trial demand. ¶ 32 We believe that the leg islature’s intent is more clea rly reve aled by ref

err ing back to the speedy trial statute. See People v. Rhinehart
, 2012 I L 111719, ¶ 26 (re cognizi ng that under the doctrine of in pari materia , two statutes or two par ts of one statute must be conside red with ref ere nce to eac h other to allo w for a “ ‘har monious’ ” interpre tation of the rele vant provisions, and words and phrase s should be con s t ru ed with ref ere nce to other rele vant provisions and not in isolation)

. T h e wo rd “suspend” is also used in subsection (f) of the speedy trial statute, which d et ails the impact on a speedy trial term as a result of delay s

occa sioned by a defe n d an t

. It contains the following languag e: “De lay occa sioned by the defe ndant shall temporarily suspend for the time o f t h e delay the period within which a p er son shall be tried as prescribed by subsections (a)
, (b), or (e) of t his Section and on t h e day of expiration of the delay the said period shall continue at the point at whic h it was suspended .” (Emphase s added.) 725 I L CS 5/103-5(f) (West 2008). It is clea r that the speedy trial statute’s use of the word “suspend” in subsection (f) means that a delay occa sioned by a def endant mer ely

tolls t he spee dy

trial term. ¶ 33 We f

ind that inconsistent results w ould be produce d if section 114-4(i) of the Criminal Code wer e interpre ted to mean that a speedy trial term ends, rather than is tolled, when a defe ndant rec eives a cont i n u an ce o n the g rounds of phy sical incapa city as opposed to a continuance on any oth er gro u n d s. Given that the speedy trial statute char acte rizes a continuance on the g rounds of phy sical incapa city as a “dela y occa sioned by the defe ndant” (725 I L CS 5/103-5(b) (West 2008)), and that subsection (f) provides that such delay s result in the speedy trial period “continu[ing] at the point it was suspended” (725 I L CS 5/103-5(f) (West 2008)), when the rea son for the delay expires, the only logic al interpre tation of the two statutes is that defe ndant’s s p ee d y trial term was tolled on April 23, 2010, when the court

was prese nted with documentation that defe ndant was ill. When rea d in contex t wi t h t h e speedy trial statute, section 114-4(i)’ s use of the phrase “commenc e anew ” only makes sense if it is interpre ted to mean that a defe ndant’s sp ee d y t ri al term continues from the date at which it was stopped whe n her phy sical inca pacity has bee n remove d. ¶ 34 Ac co rd i n gl y , we agr ee wi t h defe ndant’s interpre tation of the rele v an t s t at u t o ry prov i s i o n s; howeve r, we disag ree with their applicability to her case

. As we stated above, defe ndant rec eive d a continuance pursuant to section 114-4(i) on April 23, 2010, when defe nse counsel prese nted the court with a doctor’s note attesting to her phy sical incapa city

. At t his point, defe ndant’s speedy trial demand was temporar ily suspended; howeve r, b y failing to appea

r or comm u n i ca t e wi t h her counsel or the trial court on the next two court dates, she eff

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

no longe r able to avail herse lf of the benef its of section 114-4(i). A defe ndant must comply with the require ments of section 114-4(i) and provide the court with pertinent documentation

-12-attesting to her incapa city prior to rec eiving a continuance in order to avoid waiving a prior

speedy trial demand. Be cause defe ndant did not do s o u n t i l after failing to appea r on two schedule d court dates, we f in d that defe ndant’s prior speedy trial demand was there by waived and that a new t er m b ega n t o run on September 1, 2010, when she was rele ased from the hospital, appea

red in court and filed a new demand. There fore
, when the trial court g rante d defe ndant’s mot ion to dismiss on October 28, 2010, the par ties wer e only 57 day s into the

new speedy trial term. We thus conclude that the trial court err ed in dismissing the case on speedy trial g rounds.

¶ 35 I I I . CONCLUSI ON ¶ 36 Be cause we find that the speedy trial statute was not violated, we reve rse the judgment of the trial court and re m an d t h e cause with instructions to reinstate the char g es ag ainst defe ndant and pr ocee d with trial.

¶ 37 Reverse d and re manded.

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