People v. Harvey

571 N.E.2d 1185, 213 Ill. App. 3d 83, 157 Ill. Dec. 166, 1991 Ill. App. LEXIS 832
Appellate Court of Illinois·Decided May 14, 1991·No. 5-89-0500·Published·Cited by 4 cases

Opinion

JUSTICE CHAPMAN

delivered the opinion of the court:

Donna and Gary Decker were abducted in St. Louis on December 14, 1982. Gary Decker was killed in Missouri while his wife was raped and murdered in Illinois. Defendant, Walter Harvey, was arrested for these offenses on January 14, 1983. In April of 1983 defendant was convicted of Federal charges arising from the acts set forth above and was sentenced in June of 1983 to 120 years in prison. A St. Clair County, Illinois, grand jury returned an indictment on June 2, 1983, charging defendant with the rape and murder of Donna Decker. While these Illinois charges were pending, defendant was convicted and sentenced to death in Missouri for the murder of Gary Decker. The Illinois charges pending against defendant were dismissed on January 8, 1985. Defendant’s Missouri conviction was reversed on appeal, but he was retried, convicted, and sentenced to life in prison. However, this conviction was also overturned on appeal.

On July 20, 1987, defendant was recharged by St. Clair County, Illinois, authorities for the rape and murder of Donna Decker. The information alleged that the statute of limitations on the rape charge had been tolled since June 23, 1983, because defendant was not “usually and publicly a resident within this state.”

On July 18, 1989, defendant agreed to stipulate that if the case were called to trial, the State could prove that he was out of State for a period of time sufficient to toll the rape statute of limitations, and that it could also prove him guilty of rape and murder. In exchange for this stipulation the State would not seek the death penalty and would agree with the defendant’s sentencing recommendation of 80 years’ imprisonment for murder and 30 years’ imprisonment for rape to be served consecutively to each other, but concurrently with the Federal sentences. The trial court accepted the stipulation and the sentences. Defendant was given credit for time served against his sentence from December 24, 1987 (the date defendant was returned to Illinois after being recharged), to July 18, 1989 (the date of sentencing). Defendant raises the following issues for our review:

I. Whether the trial court erred in finding that the rape statute of limitations had not expired.

II. Whether the trial court erred in sentencing defendant to an extended term of 80 years’ imprisonment for murder.

III. Whether the trial court considered an improper aggravating factor when sentencing defendant to an extended term for murder.

IV. Whether the trial court erred in ordering defendant’s 80-year extended-term sentence of imprisonment for murder and his 30-year sentence of imprisonment for rape to be served consecutively.

V. Whether the trial court gave defendant the proper credit against his sentence for time served.

For the reasons which follow, we affirm.

Defendant initially contends that his rape conviction must be reversed because the three-year statute of limitations for rape (Ill. Rev. Stat. 1989, ch. 38, par. 3—5(b)) expired before the State recharged him on July 20, 1987. In support of this contention defendant argues that the statute of limitations tolling provision, section 3—7(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 3—7(a)), is inapplicable because “a large part of his custody before Illinois took custody on December 24, 1987, was spent in the federal prison located in Marion, Illinois.” Defendant also asserts that section 3 — 7(a) did not toll the statute of limitations because his absence from Illinois was involuntary and because the State was fully aware of his location. The State contends that the statute of limitations for rape did not expire because defendant was not usually and publicly a resident within Illinois from June 23, 1983, to December 24,1987.

Section 3 — 7(a) provides as follows:

“§3 — 7. Periods Excluded from Limitation. The period within which a prosecution must be commenced does not include any period in which:
(a) The defendant is not usually and publicly residing within this State.” Ill. Rev. Stat. 1989, ch. 38, par. 3—7(a).

Defendant’s contention that section 3 — 7(a) is inapplicable to this case because he was confined for a substantial period of time in Marion, Illinois, is without merit. Defendant testified at a motion hearing held on February 3, 1989, that he was confined at the St. Clair County jail from January 14, 1983, to June 23, 1983; that he was confined in Marion, Illinois, from September of 1984 through March of 1985; and that at all other times he was confined in either Kansas or -Missouri. Clearly defendant was out of Illinois for a period of time sufficient to toll the statute of limitations. In addition, we note that defendant stipulated that the State would produce witnesses to establish his out-of-State residence for a period of time sufficient to toll the statute of limitations.

Defendant next contends that, although he was physically out of Illinois for a period of time sufficient to toll the statute of limitations, the trial court erred in finding that the statute of limitations was tolled because his absence from the State was involuntary and because the State at all times knew defendant’s out-of-State location. We disagree. As noted above, the statute of limitations is tolled during any period in which “[t]he defendant is not usually and publicly residing within this State.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 38, par. 3—7(a).

In People v. Carman (1943), 385 Ill. 23, 52 N.E.2d 197, the supreme court was confronted with the question of whether the defendant was usually and publicly resident within this State during the time that he was confined in the Missouri penitentiary. The defendant claimed that the statute of limitations had expired because his absence from the State was not voluntary. The court interpreted section 5 of division IV of the Criminal Code (now Ill. Rev. Stat. 1989, ch. 38, par. 3—7(a)):

“This statute does not purport to toll the limitation only in case such absence is voluntary. Such construction would read into the statute words not used by the legislature, and which are contrary to the clear intention therein expressed. This would do violence to all recognized rules of construction. It would accomplish a result wholly foreign to the obvious purpose of the act. The language found in this section is too clear to admit of construction. The words must be given effect in accordance with their ordinary meaning.” Carman, 385 Ill. at 29, 52 N.E.2d at 199.

We conclude that the statute of limitations was tolled in this case. We decline to read into section 3 — 7(a) provisions which prevent the statute of limitations from being tolled if defendant’s absence from the State is involuntary and if the State is aware of the defendant’s out-of-State location. As the Carman court indicated, the language used in the statute is clear and direct. The statute is based solely upon defendant’s absence from the State. Carman, 385 Ill. at 29, 52 N.E.2d at 199.

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People v. Harvey, 571 N.E.2d 1185, 213 Ill. App. 3d 83, 157 Ill. Dec. 166, 1991 Ill. App. LEXIS 832 (Ill. Ct. App. 1991).

571 N.E.2d 1185 (People v. Harvey) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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