Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. F. EMMETT MORRISSEY, Judge, presiding.
MR. PRESIDING JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
The defendant, Richard D. Lowe, was tried before a court and jury on an indictment charging him with the crime of burglary. The jury found the defendant guilty and he was sentenced to the penitentiary for not less than two nor more than four years. No question is raised with reference to his guilt or innocence; the only question before us is whether or not the trial court erred in denying a petition filed by the defendant for his discharge. The petition is as follows:
Now comes RICHARD LOWE, by his counsel, GERALD W. GETTY, Public Defender of Cook County, Illinois, by JAMES J. DOHERTY, Assistant Public Defender, and petitions this Court to forth [sic] dismiss the above entitled cause with prejudice and discharge him pursuant to the provisions of the Sixth Amendment, U.S. Constitution, Article 2 Section 9, Illinois Constitution and any and all implementing statutes, in support whereof he says:
1. On June 4, 1962, he was arrested and charged with the within charge of burglary.
2. On June 11, 1962, he appeared before the Honorable Walter J. Kowalski, Judge of Narcotics Court branch of Municipal Court of Chicago, Illinois, on the within charge of burglary and an additional charge known as "State Addict."
3. He requested representation by counsel but said request was not granted.
4. After a hearing was held the Court said:
"THE COURT: At this time I will show no probable cause on the burglary, and I think that it requires further investigation. On the addict, there is a finding of guilty. Six months in the County Jail."
(Which were all the proceedings had this date.)
5. Petitioner served the entire sentence, and thereafter left the jurisdiction.
6. In May 1963, the petitioner was extradited from New York and the within charges were returned in an Indictment No. 63-2343, on September 10, 1963.
7. Petitioner verily believes and therefore states the fact to be that his incarceration for six months in the County Jail on a "State Addict" charge was a subterfuge and a nullity; that its true purpose was to permit the prosecuting authorities to further investigate the burglary charge.
8. He was held in custody in excess of 120 days from the time of his arrest on the ...