Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. ALFONSE F. WELLS, Judge, presiding. Affirmed.
MR. JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT.
After a jury verdict finding defendant guilty, the court imposed a sentence of five to fifteen years.
(1) The charge against defendant should have been dismissed because he was not brought to trial within 120 days of his arrest in accordance with Section 103-5 of the Code of Criminal Procedure. *fn1
(2) Defendant was denied the effective assistance of counsel.
RECORD AS TO CONTINUANCES
There is no dispute concerning the facts which are the basis for defendant's position, but it is argued that the trial court erred in its interpretation of those facts.
Defendant was taken into custody on January 22, 1964, and had not been brought to trial when he made a motion for discharge on June 11, 1964. During that period there had been a number of continuances but only one was considered by the court as having been a delay "occasioned by the defendant." That was the continuance from April 9, 1964, to May 4 of the same year. Since April 9 was less than 120 days after defendant's arrest (January 22), and since May 4 was less than 120 days prior to defendant's trial (July 1), the case in this court must stand or fall on interpretation of the April 9 continuance. Because of the importance of the proceedings on that date, we shall set forth a large part of them verbatim.
The two defendants, Rogers and Mason, were before the court and were represented by Assistant Public Defender Hartman. Katz was the Assistant State's Attorney. Both sides answered ready for trial. Rogers indicated that he wanted a jury trial, contrary to previous advice to the court, and this presented a minor administrative problem to the court since it was a Thursday and the term of the current jury was scheduled to expire the next day. The following ensued:
THE COURT: The last time we were up You are entitled to a jury trial. Don't worry. You will get a jury trial. Last time I understood this was going to be a ...