concurring in part and dissenting in part:
I agree that the two cases against Charles Watson were improperly dismissed and must be reinstated. I would also hold, however, that the charges against the remaining defendants were improperly dismissed and must be reinstated as well.
At the time of the pertinent offenses, Supreme Court Rule 505 provided that "[i]f the accused demands a trial by jury, the trial shall be scheduled within 120 days of arrest.” (113 Ill. 2d R. 505.) In effect, the majority construes this to mean that the mandatory 120-day rule is triggered any time a defendant makes a jury demand, regardless of when and how the demand is made. In taking this position, the majority ignores the rudimentary principle that the terms of a statute must be construed in the context in which they appear. (People v. Dinger (1990), 136 Ill. 2d 248, 257.) Following this principle, which is fully applicable to our court rules (134 Ill. 2d R. 2(a), Committee Comments), it is manifest that when Rule 505 referred to a "demand” in the above-quoted passage, it meant the type of demand described in the preceding portions of the rule, namely, a demand which had been filed with the clerk at least five days before the date set for the defendant’s appearance.
The majority contends that if our court had intended loss of speedy-trial rights to be a consequence of failure to notify the clerk prior to the appearance date, it would have so stated in the rule. I note, however, that the rule explicitly conditioned a defendant’s right to have his trial set within 120 days of arrest upon an appropriate demand for a jury trial, and, as I have just discussed, such a demand, taken in context, meant a demand included in a timely notice to the clerk. Because such a demand was required to trigger the 120-day rule, it necessarily follows that there was no obligation to schedule the trial within 120 days where no demand had been made.
The version of Rule 505 now before us did afford defendants the opportunity to demand a speedy trial even after the five-day advance notice period had expired, but for defendants to avail themselves of that opportunity, they were required to serve a written demand on the prosecuting attorney under section
103 — 5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 103 — 5). Under the majority’s analysis, this portion of the rule would be rendered wholly ineffective, for if a defendant could have invoked his speedy-trial rights merely by making an oral demand at arraignment, there would never have been any reason for him to utilize the procedures under section 103 — 5. Indeed, proceeding under that statute would have been nonsensical. Not only would it have entailed the additional procedural step of having to serve a written notice, it would also have enlarged the time the State had to bring the defendant to trial. This is so for two reasons. First, the speedy-trial period did not begin to run until the date of the demand (for defendants not in custody) under section 103 — 5, while under Rule 505, it was measured from the time of the arrest. Second, the speedy-trial period for defendants not in custody was 160 days under section 103 — 5, while under Rule 505, it was only 120 days. Moreover, by dispensing with the procedures specified by section 103 — 5, a defendant might actually evade prosecution entirely simply by waiting to make his Rule 505 demand until 120 days had elapsed since his arrest, as three of the defendants in this case did.1
The majority attempts to avoid responsibility for creating this procedural quirk by faulting the State for having failed to object to the trial court’s scheduling of the arraignment dates. Such a view, however, misconceives the State’s duty in such cases. While the prosecution clearly has an obligation to see that a defendant is tried within the statutory speedy-trial period once a proper demand has been made (see People v. Reimolds (1982), 92 Ill. 2d 101, 106), it has no obligation to press for trial where, as was the case on the first arraignment dates, the defendants are not in custody and have not yet made speedy-trial demands. The reason is simple. Where a defendant is not in custody, the speedy-trial rights afforded by State law do not become operative unless and until the defendant demands them. See People v. Garrett (1990), 136 Ill. 2d 318, 324.
Because the defendants in this case had neither notified the clerk in advance of their request for a jury trial nor made a speedy-trial demand under section 103 — 5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 103 — 5), the prosecuting attorney simply had no reason to believe that the trial court’s scheduling order posed any speedy-trial problems. To find otherwise would require us to hold either that the State must exercise precognition or else that it has an affirmative obligation to obtain a declaration from defendants at the very outset of a case as to whether or not they intend to assert their speedy-trial rights. Such a notion is as unreasonable as it is unprecedented, especially considering that these defendants were all represented by counsel.
The majority attempts to find support for its position in the fact that Rule 505 was amended subsequent to the events giving rise to this lawsuit, but I see nothing in that amendment which necessarily "evidences a realization that [the] version [applicable here] required nothing more of a defendant than to make a jury demand to invoke the 120-day rule.” (158 Ill. 2d at 70.) To the contrary, it seems just as likely to me that the amendment resulted from a belief that the lower courts which had so construed the rule were wrong and that the results they had produced were so muddled that the system had to be overhauled. In any case, as the majority acknowledges, Rule 505 has been amended a number of times over the last decade, both before and after the version at issue here. In my view, we should be reluctant to use any one particular version of the rule as a guide to construing the others. All the various versions really show is how difficult it has been for us to formulate a procedure which is fair, efficient, and easy to understand.
Finally, I do not believe the court can dismiss the State’s concerns over administrative chaos merely by pointing out that the rule is now different. It is axiomatic that rules, as statutes, should not be construed in a way which will lead to absurd or unjust results. Under this principle of construction, the court must test the rule before it according to the circumstances as they existed when the dispute arose. If the court’s interpretation of that rule would yield absurd results under those circumstances, it must be rejected, even though subsequent changes in the law meant that the problem would not recur. The subsequent changes do not make the interpretation any less irrational. They merely render it irrelevant. Irrelevance is a good reason for declining discretionary review of a case, but it scarcely justifies adoption of a construction that makes no sense.
For the foregoing reasons, I would reverse as to all defendants and remand with directions to reinstitute the cases against them.
JUSTICES FREEMAN and McMORROW join in this partial concurrence and partial dissent.
The appellate court erroneously added a fourth defendant, William E. Griffin, to this group. A review of the record discloses that Griffin actually made his jury demand 89 days after his arrest.