by Attorney Eric D. PuryearThe right to a speedy trial is guaranteed by the United States Constitution and the Illinois Constitution. Illinois also has codified the speedy trial guarantee in a statute—725 ILCS 5/103-5. Illinois has two speedy trial rights, depending on whether the defendant is in custody or out of custody during the criminal case.
For a defendant who is released on bail or own recognizance, the defendant must be tried within one hundred sixty (160) days from the date the defendant demands trial, unless the delay is caused by the defendant or by fitness proceedings. The speedy trial demand must be in writing and must incorporate the prior demands made. Time spent in custody can be counted in calculating the 160 days if a speedy trial demand is made upon being released.
For a defendant who is in custody, the defendant must be tried within one hundred twenty (120) days from the date the defendant was taken into custody, unless the delay is caused by the defendant or by fitness proceedings. In contrast to a defendant who has been released on bond or on own recognizance, a defendant in custody does not need to demand trial to start the 120 day speedy trial clock. On the other hand, a defendant is considered to have agreed to a delay if he or she does not object to the delay by making a written or oral demand for trial. The 120 day speedy trial period does not apply to defendants who are in custody for a parole violation or supervised release violation or if on bond or own recognizance for another offense. The 120 days must be one continuous period of incarceration. Furthermore, separate periods of incarceration cannot be combined. Finally, if a defendant is taken into custody a subsequent time for the same offense, the term begins anew at zero.
Delays occasioned by the defendant toll the speedy trial clock. The filing of defense motions toll the speedy trial clock. A defendant who is released from custody and fails to appear waives any prior demands, and the speedy trial clock is reset to zero.
Finally, the State may request and be granted up to a sixty (60) day continuance if the State has exercised due diligence to obtain evidence material to the case and there are reasonable grounds to believe that the evidence may be obtained at a later date. If the State has exercised due diligence to obtain the results of DNA testing that is material to the case and there are reasonable grounds to believe that the results may be obtained at a later date, then the State can request and be granted up to a one hundred eighty (180) day continuance.