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Criminal Defense – Speedy Trial Case Law

LAW – 2010




We have observed in prior cases that unreasonable delay
between formal accusation and trial threatens to produce more than one sort of
harm, including “oppressive pretrial incarceration,” “anxiety and concern of
the accused,” and “the possibility that the [accused’s] defense will be impaired”
by dimming memories and loss of exculpatory evidence. Barker[v. Wingo], 407 U.S., [514] at 532 [(1972)]; see also Smith v. Hooey, 393 U.S. 374, 377-379
(1969); United States v. Ewell, 383
U.S. 116, 120 (1966). Of these forms of prejudice, “the most serious is the
last, because the inability of a defendant adequately to prepare his case skews
the fairness of the entire system.” 407 U.S., at 532.


Delay, caused by government, between indictment and arrest
of 8 ½ years was presumptively prejudicial to preparation of defense and
violated constitutional Sixth Amendment right to speedy trial. Doggett v. United States, 505 U.S. 647
(1992) [referring to criteria for speedy trial in Barker v . Wingo, 407 U.S. 514, 530 ] The defendant asserted his
right to speedy trial when he became aware of indictment. Once triggered by
arrest, indictment, or other official accusation, however, the speedy trial
enquiry must weigh the effect of delay on the accused’s defense just as it has
to weigh any other form of prejudice that Barker
recognized. 2 See Moore v. Arizona,
414 U.S. 25, 26-27, and n. 2 (1973); Barker,
supra, at 532; Smith, supra, at
377-379; Ewell, supra, at 120.


[ Footnote 2] Thus, we reject the Government’s argument that
the effect of delay on adjudicative accuracy is exclusively a matter f or
consideration under the Due Process Clause. We leave intact our earlier
observation, see United States v.
, 456 U.S. 1, 7 (1982), that a defendant may invoke due process to
challenge delay both before and after official accusation.


Doggett v. United
, 505 U.S. 647 (1992)





Speedy trial rights are not per se tolled every time a
defendant files a motion.


Only motions causing an actual delay in trial toll speedy
trial rights.


“Whether delay should be attributed to the defense depends
on whether the defendant’s actions in fact caused or contributed to a delay,
for purposes of speedy trail statute.”


If a defendant fails to assert his right to speedy trial it
may be waived.


If the record does not support an actual delay in trial due
to defendant’s motion or if the record is silent on this matter, delay cannot
be taxed to defendant.


“Delay will not be attributable to the defendant from a
silent record, under speedy trial statute.”


Pro se defendant may file motion for speedy trial even if he
is represented by counsel.


“Under speedy trial statute [725 ILCS 5/103-5]. . .
defendant is responsible for calling up defense motions for hearing and


“Speedy trial statute receives a liberal construction,
designed to effectuate its purpose, though each case must be decided on its own


“The appropriate remedy for a violation of the speedy trial
statute is dismissal of the charges.”


People v. Ladd,
185 Ill.2d 602, 609, 236 Ill.Dec. 773, 708 N.E.2d 359,362 (Ill.App. 5th
Dist. 1998)





Speedy trial rights are waived on appeal if not asserted
prior to conviction and in post-trial motions.


“Defense counsel’s failure to respond to court’s
admonishment to advise court if rescheduling was inconvenient for counsel or to
object to rescheduling or renew speedy trail demand constituted implicit
agreement for continuances and tolled running of term period under Speedy Trial
court for duration of continuances, and therefore, defendant was not denied
effective assistance of counsel when his privately retained attorney made no
motion for discharge under Speedy trial Act.”


People v. DeCarlis,
88 Ill.App.3d 634, 410 N.E.2d 677 (1980)




If State answers ready for trial and State delays discovery
requested by defendant, then speedy trial delay is taxed to the State and not
to defendant. Defendant is entitled to discovery.


People v. Nunnery,
54 Ill.2d 372, 297 N.E.2d 129 (1973)  [IL
S Ct]



Delay is taxed to defendant if he is hesitant about pro se
representation and judge requests that he take the time to consider pro se


If in custody, speedy trial rights automatically are counted
and no need to request right to speedy trial. No formal demand for trial is


“Duty is upon the state to bring the defendant to trial
within the 120 day period required by speedy trial statute.”


“Speedy trial statute is to be liberally construed, with
each case being decided on its own facts.”


People v. Mayo,
198 Ill.2d 530, 764 .E.2d 525 (2002)



725 ILCS 5/103-5(e)

“If a person is simultaneously in custody upon more than one
charge pending against him in the same county, or simultaneously demands trial
upon more than one charge pending against him in the same county, he shall be
tried . . . upon at least one such charge before expiration relative to any of
such pending charges of the period prescribed by subsections (a) and (b) of
this Section.  Such person shall be tried
upon all of the remaining charges thus pending within 160 days from the date on
which judgment relative to the first charge thus prosecuted is rendered
pursuant to the Unified Code of Corrections or, if such trial upon such first
charge is terminated without judgment and there is no subsequent trial of . . .
such first charge within a reasonable time, the person shall be tried upon all
of the remaining charges thus pending within 160 days from the date on which
such trial is terminated; if either such period of 160 days expires without the
commencement of trial of . . . any of such remaining charges thus pending, such
charge or charges shall be dismissed and barred for want of prosecution unless
delay is occasioned by the defendant . . . .





“State has continuing burden to take necessary steps to
bring about prompt trial and speedy trial statute is tolled only when there has
been actual delay of trial clearly attributable to defendant.”


“Where defendant was prepared to commence trial within term
of speedy trial statute, and only State’s inexcusable tardiness in completing
discovery through belated disclosure of alleged statement of defendant
precluded trial from beginning prior to running of term, defendant could not be
charged with tolling of the speedy trial term based on defendant’s motion to
suppress alleged inculpatory statement made by defendant, but which was
revealed informally on 118th day of term at time when State did not
know content of alleged statement, and, therefore, defendant’s statutory right
to speedy trial was violated when State failed to commence proceedings, through
no fault of defendant, within statutory term.”


People v. Perkins,
90 Ill.App.3d 975, 414 N.E.2d 110 (1980)





“Defendant bears the burden of affirmatively establishing a
statutory speedy-trial violation by showing that the delay was not attributable
to his own conduct.”


“Delay occasioned by the processing of a defendant’s
motions, including the time required for the State to respond and the time
necessary for the court to hear and decide the issues, is attributable to the
defendant, for purposes of the speedy trial statute.”


“Discovery motions, as well as other defense motions, are
delays attributable to defendant, for purposes of the speedy trial statute.”


“When a defense counsel verbally indicates to the trial
court that he is agreeable to a continuance, he causes or contributes to the
delay, for purposes of the speedy trial statute, and the defendant is bound by
his counsel’s actions.”


“Defendant’s affirmative act in specifically requesting a
continuance tolled the statutory speedy trial period.”


People v. Cooksey,
309 Ill.App.3d 839, 723 N.E.2d 784 (1999)



“A discovery motion does not automatically extend the speedy
trial period.”


People v. Frame,
165 Ill.App.3d 585, 591 (1981), overruled on other grounds, People v. Garrett, 136 Ill.2d 318 (1990)





Defendant’s delays on original charge not attributable to
defendant concerning any new charges brought within 160 days. Trial must occur
within 160 days concerning the new charge(s).




“An attorney’s failure to seek discharge of his client on
speedy-trial grounds generally will be deemed ineffective assistance of counsel
if there is a reasonable probability that the defendant would have been
discharged had  timely motion for
discharge been made and no justification has been proffered for the attorney’s
failure to bring such a motion. “ People
v. Staten
, 159 Ill.2d 419, 431 (1994); People
v. Peco
, 345 Ill.App.3d 724, 729 (2004)



“The rule for determining the
number of speedy-trial days attributable to the state when new and additional
charges are brought against previously charged defendant was initially stated
in People v. Williams, 94 Ill.App.3d
241, 248-49 (1981):


‘Where new and additional charges
arise from the same facts as did the original charges and the State had
knowledge of these facts at the commencement of the prosecution, the time
within which trial is to begin on the new and additional charges is subject to
the same statutory limitation that is applied to the original charges.
Continuances obtained in connection with the trial of the original charges
cannot be attributed to defendants with respect to the new and additional
charges because these new and additional charges were not before the court when
those continuances were obtained.’ Williams,
94 Ill.App.3d at 248-49.


. . . [O]ur Supreme Court
reiterated its approval of the rule but stated that it applies only to new and
additional charges that are subject to compulsory joinder under . . . (720 ILCS
5/3—3 (West 2004)).”  People v. Boyd, 363 Ill.App.3d 1027




Delays caused by defendant on original charges cannot be
applied to new charges brought at a date later than date original charges
brought. Speedy trial for new charges for same offense are required to be
joined to original charges by 720 ILCS 5/3-3 (West 2004). Speedy trial statute
725 5/103-5(a) (West 2004). New charges home invasion dismissed on speedy trial
grounds even though new charges brought within 120 days (in custody) on day 116
after arrest, when trial occurred 149 days after arrest. To allow new charges
in violation of speedy trial statute would “allow trial by ambush” per the
Illinois Supreme Court in People v.
, 204 Ill.2d 191 (2003) “The State could lull the defendant into
acquiescing to pretrial delays on pending charges, while it prepared for a
trial on more serious, not-yet-pending charges We cannot presume that a
defendant would have agreed to a continuance if he had faced both charges. As
Justice Kuehn presciently observed, ‘All choices about requests that would
delay proceedings would be made under a false understanding as a result of this
deception.’ When the State filed the more serious charges, the defendant would
face a Hobson’s choice between a trial without adequate preparation and further
pretrial detention to prepare for trial. Today, we do not create a loophole for
criminal defendants. Instead, we close a loophole which would allow the State
to circumvent a statutorily implemented constitutional right.” Williams, 204 Ill.2d at 207, quoting People v. Williams, No 5-99-0452






1 Comment »

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