APPEAL from the Circuit Court of Cook County; the Hon. DANIEL
J. RYAN, Judge, presiding.
MR. PRESIDING JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT:
Burglary. Ill. Rev. Stat. 1967, ch. 38, par. 19-1.
After a jury trial, defendant was found guilty and sentenced to a term of 6 to 15 years.
CONTENTIONS RAISED ON APPEAL
1. Defendant was entitled to a discharge under the "speedy trial" provision of the constitution (Art. 2, Section 9), and the implementing statute (Ill. Rev. Stat. 1967, ch. 38, par. 103-5).
2. Defendant was denied a fair trial due to improper remarks made by the prosecutor during his closing argument to the jury.
3. The sentence imposed was excessive.
Defendant's first contention is that he was entitled to a discharge under Ill. Rev. Stat. 1967, ch. 38, par. 103-5, which provides that a defendant in custody is entitled to discharge if he is not tried within 120 days of the time he was taken into custody "unless delay is occasioned by the defendant, * * *."
This defendant was taken into custody on April 21, 1968; was never admitted to bail; and was brought to trial on May 15, 1969. The total time between arrest and trial may be separated into four periods for consideration of this point on appeal.
• 1 The first period (80 days) was from the date of arrest, April 21, 1968, to July 10, 1968, on which date defendant requested substitution of a different judge, which motion was allowed. Despite the fact that there may have been very little delay in making the assignment to the new judge, there was some, and the statute specifies only that "delay" be caused in order to terminate the running of the 120-day period. Also, as a practical matter, the new judge would then have had to accommodate the case into his own trial call, and we have no way of knowing the extent of the delay which this may have occasioned. The statutory time therefore commenced anew, and defendant was not entitled to discharge on this point. (See, e.g., People v. Walker, 100 Ill. App.2d 282, 289; and People v. Rice, 109 Ill. App.2d 212, 218.) People v. Hatchett, 82 Ill. App.2d 40, 49, cited by defendant, presented a unique and distinguishable factual situation, but if we were to consider it in point here, we would feel ourselves required to disagree with the point the instant defendant seeks to make on its authority. We believe our opinion in this regard is in line with those decisions which, having given careful consideration to the point, have reached the opposite conclusion. See People v. Walker, supra, and especially People v. Iasello, 410 Ill. 252, 255-256.
• 2 The second period of time in question (106 days) ran from July 10, 1968, to October 24, 1968. On October 10, defendant himself, after obtaining a change in counsel, made a motion for a continuance to October 24, which was obviously a delay occasioned by defendant and started the ...