Appeal from the Circuit Court of Randolph County; the Hon.
CARL H. BECKER, Judge, presiding. Judgment affirmed.
The People of the State of Illinois appeal from the judgment of the Circuit Court of Randolph County discharging defendant from custody upon allowance of his motion based upon section 103-5 of the Code of Criminal Procedure of 1963 (c 38, § 103-5, Ill Rev Stats).
The record shows that on January 3, 1969, the Grand Jury in and for Randolph County returned a six-count indictment charging defendant and two other individuals with the offenses of Escape (c 108, § 121, Ill Rev Stats 1967); Kidnapping (c 38, § 10-1(a), 2); Theft, two counts, (c 38, § 16-1(a)); Burglary (c 38, § 19-1); and Armed Robbery (c 38, § 18-2). The offenses are alleged to have been committed on December 21 and 22, 1968, while defendant was an inmate of the Illinois State Penitentiary at Menard.
The record shows that on January 23, 1969, defendant appeared in open court, at which time he was given a copy of the indictment, the court explained the nature of the charges and upon ascertaining that defendant was unable to employ counsel, appointed counsel for him. The case was set for trial on February 24, 1969.
On February 20, 1969, defendant was formally arraigned on these charges and entered his plea of not guilty. At that time his appointed counsel moved for, and was granted a continuance from the trial docket of February 24, 1969, for the purpose of preparation and to file certain motions. The Court granted defendant thirty days in which to file pretrial motions.
On March 10, 1969, defendant filed motions for a Bill of Particulars, Discovery and Production of Objects and Statements, and for Change of Place of Trial. These motions were set for hearing on April 18, 1969. The record does not indicate a formal hearing on that date, but a docket entry reflects that the motions were continued indefinitely at the request and agreement of all counsel.
Upon expiration of his sentence on May 13, 1969, defendant was released from the Illinois State Penitentiary. On that date he was taken into custody by the Sheriff of Randolph County and thereafter was incarcerated in the Randolph County jail.
On August 25, 1969, defendant's appointed counsel made an oral motion for dismissal of the indictment on the basis of the "120-Day Rule" because defendant had not been brought to trial within 120 days of the last delay occasioned by him while in custody. At that time defendant's counsel also moved for a "Mental Hearing" and examination by a qualified psychiatrist. On September 2, 1969, defendant's motion for discharge was denied. At the request of defendant and counsel, appointed counsel was granted leave to withdraw and other counsel was appointed.
On September 25, 1969, defendant by his newly appointed counsel renewed his motion for discharge based upon chapter 38, paragraph 103-5(a), Ill Rev Stats 1967. A hearing was held and defendant's first appointed counsel testified he could not recall any agreement with respect to the continuance of the hearing set for April 18. The court stated that the only attorney who appeared on April 18, 1969, was defendant's appointed counsel who advised the court "these matters were going to be continued because they were not ready for trial anyway at this time."
On November 24, 1969, the court entered an order reciting that on February 20, 1969, the court heard and granted defendant's motion for continuance, that it was a general continuance and
"That this Court heretofore set certain motions in this cause for hearing on April 18, 1969. That on April 18, 1969 William A. Schuwerk then counsel for said Defendant appeared in open court and informed the Court that he had orally agreed with the State's Attorney and the attorney for the Co-defendant, Richard Sims that said motions would be continued to a later date and would not be heard on April 18, 1969, as shown by the docket entry in this case. That subsequent thereto said cause was set for trial on September 15, 1969. That the said Defendant was not informed and did not agree to the continuance on April 18, 1969 as shown by his testimony and further the Court on said date was not informed by said attorney that said Defendant did not agree thereto.
"That no further action was taken by the State to prosecute said cause except for certain motions which were heard in this case on August 25, 1969. That the 120-day period provided for in chapter 38, section 103-5(a) I.R.S. commenced running on April 18, 1969 by virtue of the motion setting on said date, and that said 120-day period expired prior to September 15, 1969, the date this case was set for trial. That the trial of the Defendant was not commenced within the 120-day period as provided by said statute and the Defendant is therefore entitled to discharge pursuant to said statute."
and ordered the defendant discharged from custody.
The People's argument is twofold: First, that the continuance granted defendant in February 1969 was to the Fall criminal jury session and the statutory period would not begin to run until the Fall setting; and second, that on April 18 defendant's counsel agreed to an indefinite continuance ...