Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. IRWIN COHEN, Judge, presiding. Order reversed
and cause remanded with directions.
MR. JUSTICE LYONS DELIVERED THE OPINION OF THE COURT.
This is an appeal by the People, in accordance with Illinois Supreme Court Rule 604(a) (Ill Rev Stats (1967) c 110A, § 604(a)), from an order of the trial court granting the motion of the defendant for discharge pursuant to the speedy trial provisions of the Illinois Code of Criminal Procedure. See Ill Rev Stats (1965), c 38, § 103-5(a) and (d). The record indicates this chronology of events.
JANUARY 25, 1966 defendant was arrested with another man for murder and was never admitted to bail.
FEBRUARY 21, 1966 defendant was indicted jointly with the other man for murder.
FEBRUARY 28, 1966 defendant was arraigned. He declared his indigency, the public defender was appointed to represent him, a plea of not guilty was entered, and the case was assigned by the chief judge to another judge for trial. On this same day, the trial judge granted the motion of the defendant for a list of witnesses to any statements made by the defendant, said list to be furnished the defendant by the State within 10 days. By order of court, the cause was continued to March 15, 1966.
MARCH 15, 1966 by order of court, the cause was continued to March 31, 1966.
MARCH 22, 1966 defendant, by his appointed counsel, filed a written motion for severance. The court ordered that the hearing on said motion be continued to March 31, 1966.
MARCH 31, 1966 after a full hearing, the court granted the motion of the defendant Jones for a severance and, by order of court, the cause was continued to April 20, 1966.
Thereafter, by order of court, the cause was continued several times until July 25, 1966.
On July 25, 1966, the defendant, by his appointed counsel, filed a written motion for discharge alleging that he was never admitted to bail; he was not brought to trial within 120 days from the date of his arrest as required by section 103-5(a) of the Code of Criminal Procedure; and he did not cause this delay. After a full hearing, the court granted the motion of the defendant for discharge and entered an order to that effect thereby freeing the defendant from custody. The People appeal from this order.
It is settled law in Illinois that the State may appeal from an order discharging the defendant from custody due to the failure of the State to accord him a speedy trial in accordance with the 120-day standard found in Ill Rev Stats (1965), c 38, § 103-5(a). The courts have stated that the granting of such an order is in substance and effect a dismissal of the indictment, an order from which the State may appeal. See People v. Petropoulos, 34 Ill.2d 179, 214 N.E.2d 765 (1966). The right of the State to appeal in such a case as this one has now been codified in Ill Rev Stats (1967), c 110A, § 604(a).
The right of every accused to receive a speedy trial is guaranteed by art II, § 9 of the Illinois Constitution and is given concreteness and specificity by our legislature in Ill Rev Stats (1965), c 38, § 103-5(a) and (d), which provide as follows:
(a) Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant, by a competency hearing, or by an interlocutory appeal.
(d) Every person not tried in accordance with sub-sections (a), . . . of this Section shall be ...