People v. Ladd

                               NO. 5-96-0006

                                  IN THE 

                        APPELLATE COURT OF ILLINOIS

                              FIFTH DISTRICT
_________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,   )  Appeal from the 
                                       )  Circuit Court of 
     Plaintiff-Appellee,               )  St. Clair County.
                                       )  
v.                                     )  No. 95-CF-427
                                       )
LEROY LADD,                            )  Honorable
                                       )  James M. Radcliffe, 
     Defendant-Appellant.              )  Judge, presiding.  
_________________________________________________________________

     JUSTICE KUEHN delivered the opinion of the court:
     On April 9, 1995, defendant attacked his paramour with a
knife.  The police took him to jail that same day.  He has been
locked up ever since. 
     Defendant stood trial on October 17, 1995.  The jury
deliberated to verdict the next day.  It acquitted defendant of
attempted murder but reached guilty verdicts on accompanying
aggravated battery and armed violence charges.  Defendant now
serves four- and twelve-year concurrent prison terms imposed on the
two guilty verdicts. 
     This appeal examines the 191 days from defendant's arrest to
trial's commencement.  We are asked to overturn defendant's
convictions because he waited longer than 120 days in jail before
trial began.
     Here is a recapitulation of the relevant events that occurred
during defendant's jail stay awaiting trial:
     April 9, 1995       State places defendant in custody. 
     May 5, 1995         Defendant waives preliminary hearing.
     May 19, 1995        St. Clair County grand jury indicts
                         defendant for aggravated battery,
                         attempted murder, and armed violence.
     June 26, 1995       Defendant files motion to dismiss
                         complaint.
     June 27, 1995       Defendant files pro se motion to dismiss.
     June 29, 1995       Defendant seeks and obtains order setting
                         motions for July 12, 1995.
     August 14, 1995     Defendant files pro se motion to dismiss
                         for violation of speedy trial rights.
     August 15, 1995     Defendant's lawyer files motion for
                         speedy trial discharge and argues motion. 
                         Court allows defendant until August 25,
                         1995, to present additional authority in
                         support of the motion.
     September 15, 1995  The court denies the motion for
                         discharge.
     September 26, 1995  The court holds a status conference and
                         sets trial for October 16, 1995.
     October 16, 1995    The court denies the motion to dismiss
                         complaint.
     October 17, 1995    Trial begins.
     A speedy public trial is constitutionally guaranteed to every
American citizen.  U.S. Const., amend. VI.  Since the State
possesses the power to level accusation, the power to deprive
freedom based on accusation, and the power to control trial's
timetable, a speedy trial assures that due process means something. 
It secures the worth of other basic freedoms and promises the
orderly administration of justice.  It exists in recognition of a
simple truth that "justice delayed is justice denied."
     In Illinois, the prompt disposition of criminal cases assumes
new meaning by recent constitutional amendment overwhelmingly
approved by the people of this State.  The Illinois Constitution,
as it has since its inception, guarantees a speedy trial to any
citizen accused of a criminal act.  Ill. Const. 1970, art. I, 8. 
Now, it also guarantees any citizen that falls victim to a criminal
act "timely disposition of the case following the arrest of the
accused."  Ill. Const. 1970, art. I, 8.1(a)(6) (amended November
3, 1992).  In tandem, these assurances instruct that the speedy
disposition of criminal charges is in everyone's interest.  In
Illinois, a speedy trial is most assuredly the basic thread
essential to our fabric of justice.
     Additionally, our lawmakers provide specific statutory
guidelines that impose express time limits for the processing of
criminal cases.  Their design is to implement speedy trial rights. 
People v. Hamby, 27 Ill. 2d 493, 495-96, 190 N.E.2d 289, 291
(1963).  Statutory time constraints also promote the innate
fairness that prompt and orderly criminal justice brings.  Our
legislature has long guaranteed that "every person in custody in
this State for an alleged offense shall be tried *** within 120
days from the date he was taken into custody unless delay is
occasioned by the defendant ***."  725 ILCS 5/103-5(a) (West 1994).
     In this case, defendant's trial began 191 days from the date
he was taken into custody.  Therefore, unless delay was occasioned
by the defendant, his trial violates the statute's guarantee to
speedy justice and his convictions cannot stand.
     We review a September 15, 1995, order that denied defendant's
speedy trial discharge motion.[fn1]  The order found that
defendant's stay in jail for 191 days without a trial was due to
delay that defendant occasioned.  The trial court decided that
time's march to the speedy trial deadline halted on June 26, 1995,
when defendant filed a motion to dismiss the criminal complaint.
Moreover, defendant's motion suspended statutory time constraints
until the motion was resolved.  Thus, the trial court's view of the
motion's tolling effect suspends the statute's time clock from the
motion's filing date until the eve of trial when the motion was
ultimately denied.
     We first examine the effect of defendant's motion to dismiss
on the statutory duty to commence trial within 120 days.  The
motion itself plainly lacks merit.  Defendant raises the motion's
obvious deficiencies and frames the question--whether the trial
court abused its discretion by finding that a patently meritless
motion produces trial's delay.  In effect, defendant argues that
the motion causes no delay because of its facially worthless
content and that it follows that no delay exists to attribute to
defendant.  
     This argument is not dispositive of the case.  A motion's
content is a necessary consideration in deciding whether it causes
delay.  However, it does not control the essential question--
whether the motion actually delays trial.  Here, defendant's
meritless motion actually causes such a delay.
     This case turns on the effect of a June 29, 1995, order.  The
order set defendant's motion for hearing and disposition on July
12, 1995.  The trial court's decision bypasses this order without
comment. 
     The defendant scheduled the motion to dismiss complaint for
hearing and disposition.  The procurement of an order that calls
for the motion's disposition produces two pertinent consequences. 
First, it causes a delay that defendant occasions regardless of the
motion's content.  Second, it fixes a date certain for the
resolution of pending motions.  After that date passes, the tolling
effect lifts and time begins again to advance on the 120-day
constraint. 
     Initially, we discuss defendant's argument that the instant
motions cannot produce attributable delay because of their content. 
As a general proposition, defendants are charged with delay that
occurs from filing motions.  People v. Hubbard, 276 Ill. App. 3d
98, 101-02, 657 N.E.2d 1159, 1162 (1995).  The statute's time
constraints are suspended during that time naturally associated
with processing such motions.  People v. Lendabarker, 215 Ill. App.
3d 540, 553-54, 575 N.E.2d 568, 576-77 (1991).  In addition,
defendant bears the responsibility for setting his motions for
hearing and disposition.  A failure to do so tolls the statutory
time period.  People v. Jones, 145 Ill. App. 3d 804, 807, 495 N.E.2d 1330, 1333 (1986).
     The trial court relied upon several cases that stand for the
proposition that motions to dismiss charges work delay that is
properly attributed to defendants.  See People v. Jones, 104 Ill. 2d 268, 472 N.E.2d 455 (1984); People v. Frame, 165 Ill. App. 3d
585, 519 N.E.2d 482 (1988); People v. DeStefano, 85 Ill. App. 2d
274, 229 N.E.2d 325 (1967). 
     Notwithstanding, the common attribution of delay because of
defense motions does not mean automatic attribution of delay.  See
People v. Jump, 127 Ill. App. 3d 440, 468 N.E.2d 1278 (1984);
People v. Ferguson, 46 Ill. App. 3d 815, 361 N.E.2d 339 (1977). 
The speedy trial statute contemplates more than the mechanical
attribution of delay every time defendant engages in an act in
pursuit of a defense.  A per se rule does not exist.  Speedy trial
rights do not toll simply because a defendant files a motion. 
Ferguson, 46 Ill. App. 3d at 818, 361 N.E.2d  at 341.  If such a
rule did exist, our inquiry could end here.
     Not all motions cause delay.  "Whether a motion in fact causes
delay depends on the facts and circumstances of each case, and the
trial court must appraise the timeliness and complexity of the
motion."  People v. Montenegro, 203 Ill. App. 3d 314, 317, 560 N.E.2d 934, 936 (1990).  The 120-day rule is suspended only "`"when
there has been actual delay of trial clearly attributable to the
defendant."'"  People v. Grant, 104 Ill. App. 3d 183, 188-89, 432 N.E.2d 1129, 1133, (1982), quoting People v. Perkins, 90 Ill. App.
3d 975, 979, 414 N.E.2d 110, 114 (1980), quoting People v. Hannah,
31 Ill. App. 3d 1087, 1089, 335 N.E.2d 84, 86 (1975). 
     There were actually two motions to dismiss on file.  The trial
court focused on defense counsel's June 26, 1995, motion to dismiss
complaint.  Defendant filed a pro se motion to dismiss on the
following day.  Both motions were patently meritless.  
     The June 26, 1995, motion to dismiss complaint sought the
criminal complaint's dismissal and defendant's release from
custody.  The request raised the statutory call for a probable
cause determination within 30 days of a defendant's arrest.  See
725 ILCS 5/109-3.1 (West 1994).  The motion relied entirely upon
the absence of a timely probable cause determination.  But
defendant knowingly waived such a determination less than 30 days
after his arrest.  On May 5, 1995, defendant appeared in open court
and waived his scheduled preliminary hearing.  Defendant thereby
surrendered the statute's protection.
     Further, the motion sought defendant's release.  Assuming that
the State violates section 109-3.1 of the Code of Criminal
Procedure of 1963 (725 ILCS 5/109-3.1 (West 1994)), which it did
not, the violation would not result in defendant's release.  See
People v. Clarke, 231 Ill. App. 3d 504, 596 N.E.2d 872 (1992). 
     And finally, the motion sought the complaint's dismissal.  The
State procured and obtained a valid grand jury bill of indictment
on May 19, 1995.  The motion pursued a pointless act where the
indictment had already supplanted the complaint as the charging
instrument.
     The June 27, 1995, pro se motion asked that the "case be
dismissed."  The motion asserted the grand jury's failure to indict
within 30 days, the victim's desire not to press charges, the
absence of the victim's signature on the criminal complaint, and
defendant's claim that he acted in self-defense.
     Clearly, any prosecutor worth salt needs but a moment to
prepare for these motions.  A cursory reading exposes their obvious
deficiency.  We note that when finally asked to speak to
defendant's motion to dismiss complaint, 123 days after defendant
filed it, the prosecutor disposed of the motion's worth in two
sentences.  He simply pointed out that the law did not extend the
remedy sought and that even if it did, defendant was afforded a
timely preliminary hearing.
     The usual reason for the attribution of delay where defense
motions raise a challenge to charges is absent here.  Since the
motion did not challenge the indictment's validity, it cannot
possibly threaten the prosecution's progress.  It caused neither a
departure from the State's trial preparation nor a barrier to
trial's orderly advance.  The motion harbored no chance of success. 
It portended no harm to this prosecution.  It merely laid there and
awaited a hand to deny it.
     Nonetheless, a pretrial motion's merit is not the definitive
measure of its tolling effect.  Hubbard, 276 Ill. App. 3d at 102,
657 N.E.2d  at 1162.  The question is always whether the motion,
regardless of its worth, actually causes delay.  Here, defendant's
motions clearly caused a delay, albeit for a reason other than the
one the trial court assigned.  Defense counsel procured a special
setting for the court to conduct whatever proceedings were
necessary to dispose of the two motions.  This met defendant's
responsibility to call his motions up for disposition.  It also set
the timetable for disposition.  The delay that followed is clearly
a delay that defendant occasioned.  Therefore, there was no abuse
of discretion in the trial court's attribution of delay to the
extent that the delay related to time's passage from June 29, 1995,
to July 12, 1995. 
     The trial court, however, attributed delay to defendant from
June 26, 1995, to the day it denied the discharge request and
beyond.  The State pursues this position and argues that the
motion's tolling effect does not dissipate until the motion was
denied on October 16, 1995.  This position fails to account for the
June 29, 1995, order that schedules a July 12, 1995, disposition of
defendant's motions.  The request for a date certain to decide the
motions and the subsequent order allowing that request yield a day
of some consequence to any tolling effect thereafter ascribed to
defendant's two motions. 
     When the sun retreated over the horizon on July 12, 1995,
defendant's motions remained unaddressed and undecided.
     The judge who entered the June 29, 1995, order and scheduled
the July 12, 1995, hearing was not the judge who decided the
discharge motion.  On August 15, 1995, when defendant presented the
motion, a judge unfamiliar with earlier events noted the June 29,
1995, order, pondered the July 12, 1995, setting, and wondered what
happened.  Defense counsel offered the following:  
     "We have not did [sic] nothing [sic] to toll my client's time
     in this case.  The time has continued to run. We have did
     [sic] nothing to toll his time. *** [I]t was set for July 12. 
     Mr. Stern was out of town.  That was why that case was
     continued from that time period.  I believe it was--he was on
     vacation or something and wasn't back in at that time."  
Assistant State's Attorney Stern responds:  
     "And as to the vacation[--]that I may have been on vacation on
     July 12, 1995, I did not move to continue any cause.  And
     there are a number of [assistant] State's [A]ttorneys in the
     building who fill in on vacation schedules.  So I--to my
     knowledge, the State in no way caused any delay in any
     hearing." 
     Apparently, nothing happened on July 12, 1995.  Other than the
clouded recollections of the attorneys involved, the record is
devoid of any reason or explanation for why nothing happened. 
While the burden of proof rests with the defendant to establish a
violation of the 120-day rule, delay cannot be attributed to
defendant where the record is silent.  People v. Grant, 104 Ill.
App. 3d 183, 188, 432 N.E.2d 1129, 1132 (1982); People v.
Cunningham, 77 Ill. App. 3d 949, 952, 396 N.E.2d 876, 878 (1979). 
Here, the failure to dispose of defendant's motions on the date set
for disposition is unaccounted for.  The record is silent.  It
affords no justification for the attribution of further delay to
defendant.  After July 12, 1995, there is simply no reason to
assign the pendency of the two motions as a cause for trial's delay
that defendant occasions.
     The comments of assistant State's Attorney Stern are
instructive.  He defended against the claim that any inaction was
due to his absence by insisting that he did not move to continue
any hearing.  Further, he noted that even if the hearing was
postponed due to his vacation, it did not have to be.  He points to
the everyday presence of other assistants available to carry the
torch.  All of this is no doubt true, but it offers nothing to
justify the attribution of further delay to defendant.  
     The reason is simple.  The right to a speedy trial embraces
the duty of officials other than prosecutors.  Not all delays
chargeable to the State are delays directly pursued by, or even
with the desire of, those who prosecute.  The State is an entity
that includes members of the judiciary.  In this instance, the
court, not the defendant, was obliged to do something.  The court
might have procured another assistant to take Stern's place if,
indeed, Stern was unavailable.  The court might have briefly
continued the motions to another date when Stern would be back in
town.  Or the court might simply have proceeded without an
assistant State's Attorney present.  The motions are deficient on
their face.  A simple reading instructs on the State's position. 
Indeed, both motions cry out for summary disposition.  
     There is one thing the court could not do.  The court could
not simply ignore the scheduled hearing date, allow defendant to
remain in custody, and thereby indefinitely suspend the right to
speedy trial.  The setting compels the court to either dispose of
the motions at the appointed hour or account for why they remain
undecided.  Contrary to the implication in Stern's comments, jailed
defendants bear no responsibility to find standby prosecutors or
otherwise secure someone prepared to prosecute them.  Defendant
cannot be made to shoulder trial's delay because of pending
motions, after he sets those motions for hearing and disposition
and no one decides to show up.  As far as we know, defendant spent
July 12, 1995, in jail.  Based on this record, he simply cannot be
blamed for delay incurred because of inaction on that date.  
     Thus, the trial court abused its discretion when it charged
defendant with delay occasioned after July 12, 1995.
     The tolling effect of the pending July 12, 1995, setting lifts
after the scheduled disposition on that date inexplicably fails to
take place.  The time delay from June 29, 1995, to July 12, 1995,
was, nonetheless, properly attributable to defendant.  Therefore,
on August 15, 1995, when the discharge motion presented itself for
decision, the time chargeable to the State stood at 115 days.  The
statute's deadline had not passed, but the time clock was running,
and the deadline was close at hand.  After argument on the motion,
the trial court allowed defendant until August 25, 1995, to present
authority for his position.  It reserved its ruling and ultimately
rendered a decision denying the discharge motion 30 days later on
September 15, 1995.  
     An accused is entitled to discharge if his trial begins more
than 120 days after arrest, allowing for all delays that he himself
causes.  People v. McDonald, 168 Ill. 2d 420, 438-39, 660 N.E.2d 832, 839 (1995).  Clearly, time ran out far in advance of
defendant's October 17, 1995, trial date.  Defendant qualified for
discharge on the day trial began.  However, defendant failed to
raise a motion for discharge after the time ran.  The discharge
remedy is not automatic.  It graces only those defendants who
properly assert it.  People v. Garcia, 251 Ill. App. 3d 473, 477-
78, 621 N.E.2d 1035, 1038-39 (1993).  
     Thus, the effect of the 30-day delay after defendant asserted
his right to discharge determines the outcome of this case.  If the
prematurely raised motion for discharge suspended the running of
the statute, the trial court's decision correctly denied
defendant's request for discharge.  If time was tolled pending the
decision on the motion, only 115 days of chargeable time existed on
September 15, 1995.  Moreover, since defendant failed to raise his
right to discharge at a time when the facts entitled him to it,
defendant forfeits the discharge remedy.  Defendant must therefore
prevail, if at all, on the August 15, 1995, discharge motion.  If
that motion was correctly decided, defendant forfeited his speedy
trial rights.
     Our dispositive inquiry is whether defendant's premature
discharge motion ripened into a meritorious motion during the trial
court's advisement period.  If so, by the time the decision was
reached, defendant deserved the discharge requested and the trial
court reached the wrong result.  If the statute ran after August
15, 1995, but before September 15, 1995, defendant's convictions
cannot stand.
     The question of a discharge motion's effect on the speedy
trial statute was initially addressed by our supreme court in 1953. 
The court held that the filing of a discharge motion is not an act
that delays trial.  It further held that "the fact that the trial
court did not immediately hear his motion and later took it under
advisement [does not] tend to show that the trial was delayed by
any act on the part of defendant."  People v. Tamborski, 415 Ill. 466, 473, 114 N.E.2d 649, 653 (1953).  In 1966, the supreme court
cited Tamborski for the proposition that a motion for discharge is
not a motion the filing of which causes delay attributable to the
defendant.  People v. Moriarity, 33 Ill. 2d 606, 611, 213 N.E.2d 516, 519 (1966).  Our court has consistently adhered to this
precedent.  See People v. Uryasz, 32 Ill. App. 3d 825, 336 N.E.2d 813 (1975);  People v. McKinney, 59 Ill. App. 3d 536, 375 N.E.2d 854 (1978);  People v. Rideout, 193 Ill. App. 3d 884, 550 N.E.2d 632 (1990);  Hubbard, 276 Ill. App. 3d 98, 657 N.E.2d 1159.
     Therefore, our task seems simple enough.  If we abide the
concept of stare decisis, follow our high court's decision, and
apply the math, the trial court was wrong to deny the discharge
motion.  The State's chargeable time under the statute swelled from
115 days to 145 days while the issue awaited decision.  Since
defendant's assertion of his right to discharge is not an act that
delays trial, the speedy trial statute ran before a decision was
made.  It follows that on the day the trial court reached its
result, the result it reached was wrong.
     Although our task seems simple, things are not always as they
seem.  
     While defendant's speedy trial rights were still intact,
defendant sought the court's agreement to prolong the decision on
the discharge motion to a time beyond the statute's 120-day
deadline.  At the close of argument on August 15, 1995, concerned
about the June 29, 1995 order, the court asked for the submission
of authority that might define its effect.  The State provided two
cases.  The court asked defense counsel if he wished to respond
and, if so, how much time he wanted to submit additional authority. 
Counsel asked for a week, and the court granted counsel until
August 25, 1995.  The trial court agreed, at defendant's behest,
not to consider or decide the discharge motion before August 25,
1995.  
     In addition, this court had recently departed from the rule
enunciated in Tamborski and has decided cases that attribute delay
in processing discharge motions to defendants.  See People v.
Medina, 239 Ill. App. 3d 871, 607 N.E.2d 619 (1993); People v.
Colts, 269 Ill. App. 3d 679, 645 N.E.2d 225 (1993); People v.
Andrade, 279 Ill. App. 3d 292, 664 N.E.2d 256 (1996).  Our northern
brethren shun Tamborski and call for an examination of the facts
and circumstances of each case.  They establish criteria to
determine whether the delay associated with a discharge motion
falls to the defendant.  The attribution of delay depends upon "the
timeliness of the motion, the complexity of the motion, whether the
facts necessary to decide the motion are readily available, and the
length of the continuance."  Andrade, 279 Ill. App. 3d at 300, 664 N.E.2d  at 262-63.
     Our colleagues treat supreme court precedent in a manner that
strains our role as an intermediate court of review.  Under the
doctrine of stare decisis, when our supreme court has declared law
on any point, only it can modify or overrule its previous opinion
and lower courts are bound by such decision.  Cummins v. Country
Mutual Insurance Co., 281 Ill. App. 3d 5, 9, 666 N.E.2d 909, 911
(1996), aff'd, 178 Ill. 2d 474, 687 N.E.2d 1021 (1997).
     In Andrade, the court discounts numerous appellate court
decisions that follow the Tamborski precedent precisely because
each is traceable to that precedent.  According to the Andrade
opinion, we have consistently adhered to unsound work on the part
of the high court:
     "In *** Tamborski [citation], the court found [that] the time
     necessary to process defendant's motion to discharge was not
     chargeable to him. However, the court cited no authority for
     this holding.  In People v. Moriarity [citation], the court
     declared the rule and simply cited to Tamborski."  Andrade,
     279 Ill. App. 3d at 299, 664 N.E.2d  at 262.
     It is simply not our place to discard Tamborski and create an
analytical approach at odds with its clear edict.  This holds true
whether our supreme court cites authority that supports its holding
or not. 
     Notwithstanding, the first district cases that address this
question reach results perfectly compatible with Tamborski. 
     Tamborski stands for the proposition that the act of filing a
discharge motion does not toll a defendant's right to speedy trial. 
Such an act does not delay trial.  It rather seeks discharge on a
contention that time's passage already renders the prosecution
infirm.  It places at issue whether defendant's further
incarceration is legal.  Thus, there is sound reason to address
discharge motions swiftly and to reach prompt but deliberate
decisions once they are filed. 
     Tamborski expressly states that courts cannot unilaterally
delay hearings on such motions or take them under advisement and
attribute the delay for such acts to defendants.  However,
defendants can still occasion actual delays associated with
bringing discharge motions.  Nothing in Tamborski calls for
instantaneous, uninformed trial court rulings on a matter of such
import.  Defendants cannot bring discharge motions in a manner that
effectively circumvents adversarial response.  See Andrade, 279
Ill. App. 3d 292, 664 N.E.2d 256.  A defendant who files a
discharge motion on the day trial begins, the effect of which
causes the trial to start the following day, causes actual delay
rightfully attributable to him.  See Colts, 269 Ill. App. 3d 679,
645 N.E.2d 225.  A defendant who agrees to the postponement of the
decision on his discharge motion to a later date again causes
actual delay attributable to him.  See Medina, 239 Ill. App. 3d
871, 607 N.E.2d 619.  None of these circumstances offend
Tamborski's commands.  
     In our case, the trial court's agreement to defer the decision
in order to allow defendant's submission of additional authority
caused delay rightfully attributable to defendant.  The fact that
the delay occurred after defendant filed for discharge does not
invoke the Tamborski rule.  Defendant cannot pursue inaction on his
discharge motion, gain the court's agreement to refrain from
action, and subsequently raise Tamborski to assign the resulting
delay to the State.  When the trial court agreed, at defendant's
behest, to await additional authority from defendant before it
decided what to do, the motion was not under advisement.  In
effect, the motion was not submitted for decision until August 26,
1995.  Defendant affirmatively precluded any processing of his
motion until August 25, 1995, passed.
     The 21 days of decision-making that transpire after the
solicited grace period presents a different question.  After August
25, 1995, defendant sought immediate discharge and awaited
decision.  His further stay in the St. Clair County jail does
nothing to delay decision.  The only conceivable act of delay was
the tender of the question for decision.  After August 25, 1995,
defendant did nothing to actually delay trial. 
     This is not a case where defendant tendered the discharge
motion for decision on the day trial began.  Defendant's timing did
not hinder the State's ability to offer a reasoned response to the
discharge motion.  The delay after August 25, 1995, is "under
advisement" delay, unilaterally engaged in by the trial court. 
Such delay cannot be charged to defendant.  Tamborski, 415 Ill.  at
475-76, 114 N.E.2d  at 654.  
     Therefore, time's passage dishonors the law's assurance of
prompt and speedy justice on September 1, 1995.  It validates
defendant's demand for discharge on that date.  Since the State's
allowable time to commence trial is spent by the time September 15,
1995, arrives, the denial of the speedy trial discharge motion on
such date was an abuse of discretion.  
     Accordingly, we reverse defendant's conviction.

     Reversed.  

     CHAPMAN, J., and GOLDENHERSH, J., concur.
     [fn1]Judge Radcliffe was assigned this case on October 17,
1995.  All matters prior thereto occurred before different judges.