prejudice to defense presumed after delay of 33 months
How later courts described this case
- prejudice to defense presumed after delay of 33 months
Written by the judges who cited it.
Distinguished
Distinguished by People v. Makes, 103 Ill. App. 3d 232 (1981)
The cases relied upon by defendant, People v. Yaeger (1980), 84 Ill. App. 3d 415, 406 N.E.2d 555, and People v. Nichols (1978), 60 Ill. App. 3d 919, 377 N.E.2d 815, are inapposite.
The opinion
Mr. PRESIDING JUSTICE STENGEL, specially concurring:
I do not believe, as the majority opinion does, that the Sixth Amendment is involved. Most courts of appeal have recognized the Sixth Amendment right to a speedy trial only after a prosecution has been formally begun. Typical of this is Illinois statute on speedy trial. (See Ill. Rev. Stat. 1977, ch. 38, par. 103—5(a): “Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody * * *.” (Emphasis added.)) I decline to extend the reach of the law to the period prior to arrest. There is no constitutional right to be arrested. See United States v. Marion (1971), 404 U.S. 307 , 30 L. Ed. 2d 468 , 92 S. Ct. 455 .
I disagree with the conclusion reached that prejudice to the defendant should be presumed. I believe the defendant has a duty to come forth with a clear showing of actual and substantial prejudice. (See People v. Lawson (1977), 67 Ill. 2d 449 , 367 N.E.2d 1244 .) Because the State neither petitioned nor notified the juvenile court before bringing adult criminal charges against the defendant, I agree that this was plain error since Ellis has only prospective application. Hence I concur in the result.