§ 114-4 — Motion for continuance

Illinois § 114-4

• Jurisdiction: Illinois
• Topic: RIGHTS AND REMEDIES
• Ch. 725: CRIMINAL PROCEDURE
• Act 725 ILCS 5/: Code of Criminal Procedure of 1963.
• Art.: Title V - Proceedings Prior To Trial

Text

(a) The defendant or the State may move for a continuance. If the motion is made more than 30 days after arraignment the court shall require that it be in writing and supported by affidavit. (b) A written motion for continuance made by defendant more than 30 days after arraignment may be granted when: (1) Counsel for the defendant is ill, has died, or is held to trial in another cause; or (2) Counsel for the defendant has been unable to prepare for trial because of illness or because he has been held to trial in another cause; or (3) A material witness is unavailable and the defense will be prejudiced by the absence of his testimony; however, this shall not be a ground for continuance if the State will stipulate that the testimony of the witness would be as alleged; or (4) The defendant cannot stand trial because of physical or mental incompetency; or (5) Pre-trial publicity concerning the case has caused a prejudice against defendant on the part of the community; or (6) The amendment of a charge or a bill of particulars has taken the defendant by surprise and he cannot fairly defend against such an amendment without a continuance. (c) A written motion for continuance made by the State more than 30 days after arraignment may be granted when: (1) The prosecutor assigned to the case is ill, has died, or is held to trial in another cause; or (2) A material witness is unavailable and the prosecution will be prejudiced by the absence of his testimony; however this shall not be a ground for continuance if the defendant will stipulate that the testimony of the witness would be as alleged; or (3) Pre-trial publicity concerning the case has caused a prejudice against the prosecution on the part of the community. (d) The court may upon the written motion of either party or upon the court's own motion order a continuance for grounds not stated in subsections (b) and (c) of this Section if he finds that the interests of justice so require. (e) All motions for continuance are addressed to the discretion of the trial court and shall be considered in the light of the diligence shown on the part of the movant. Where 1 year has expired since the filing of an information or indictments, filed after January 1, 1980, if the court finds that the State has failed to use due diligence in bringing the case to trial, the court may, after a hearing had on the cause, on its own motion, dismiss the information or indictment. Any demand that the defendant had made for a speedy trial under Section 103-5 of this code shall not abate if the State files a new information or the grand jury reindicts in the cause. After a hearing has been held upon the issue of the State's diligence and the court has found that the State has failed to use due diligence in pursuing the prosecution, the court may not dismiss the indictment or information without granting the State one more court date upon which to proceed. Such date shall be not less than 14 nor more than 30 days from the date of the court's finding. If the State is not prepared to proceed upon that date, the court shall dismiss the indictment or information, as provided in this Section. (f) After trial has begun a reasonably brief continuance may be granted to either side in the interests of justice. (g) During the time the General Assembly is in session, the court shall, on motion of either party or on its own motion, grant a continuance where the party or his attorney is a member of either house of the General Assembly whose presence is necessary for the full, fair trial of the cause and, in the case of an attorney, where the attorney was retained by the party before the cause was set for trial. (h) This Section shall be construed to the end that criminal cases are tried with due diligence consonant with the rights of the defendant and the State to a speedy, fair and impartial trial. (i) Physical incapacity of a defendant may be grounds for a continuance at any time. If, upon written motion of the defendant or the State or upon the court's own motion, and after presentation of affidavits or evidence, the court determines that the defendant is physically unable to appear in court or to assist in his defense, or that such appearance would endanger his health or result in substantial prejudice, a continuance shall be granted. If such continuance precedes the appearance of counsel for such defendant the court shall simultaneously appoint counsel in the manner prescribed by Section 113-3 of this Act. Such continuance shall suspend the provisions of Section 103-5 of this Act, which periods of time limitation shall commence anew when the court, after presentation of additional affidavits or evidence, has determined that such physical incapacity has been substantially removed. (j) In actions arising out of building code violations or violations of municipal ordinances caused by the failure of a building or structure to conform to the minimum standards of health and safety, the court shall grant a continuance only upon a written motion by the party seeking the continuance specifying the reason why such continuance should be granted. (k) In prosecutions for violations of Section 10-1, 10-2, 11-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60, 12-13, 12-14, 12-14.1, 12-15 or 12-16 of the Criminal Code of 1961 or the Criminal Code of 2012 involving a victim or witness who is a minor under 18 years of age, the court shall, in ruling on any motion or other request for a delay or continuance of proceedings, consider and give weight to the adverse impact the delay or continuance may have on the well-being of a child or witness. (l) The court shall consider the age of the victim and the condition of the victim's health when ruling on a motion for a continuance.

Legislative History

(Source: P.A. 96-1551, eff. 7-1-11; 97-1150, eff. 1-25-13.)