APPEAL from the Circuit Court of Cook County; the Hon. SAUL A.
EPTON, Judge, presiding.
MR. PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
Defendant was arrested on May 12, 1970, and charged with the offense of theft of American Express money orders valued in excess of $150. The cause was continued several times in the months that followed, and, on September 22, 1970, after he had been indicted and arraigned, defendant moved for discharge because of the State's failure to bring him to trial within 120 days as required by Ill. Rev. Stat., ch. 38, par. 103-5. *fn1 A hearing was held on October 2, 1970, and the motion was granted. The State now appeals seeking to reverse that order, contending that the delay was caused by defendant.
On the day following defendant's arrest, a preliminary hearing was held to determine whether probable cause existed to hold him over to the grand jury. Defendant appeared without counsel and the court apprised him of the nature of the charges against him. Responding to defendant's request for a reduction in bond, the court inquired into his background. Defendant conceded that his record was "pretty bad" but stated, however, that the record was not really as bad as it looked on paper. He charged that someone had sent his record of bad checks to his creditors, and he asserted, "If I could get a good lawyer and good investigator, you will find this was sent to the Small Business Association. Somebody geared this record and sent it to the Small Business Association." At the conclusion of the colloquy, the judge refused to lower the bond and continued the hearing to June 11, 1970. The record indicates that the court marked the continuance "Motion State." Having not yet been brought to trial, defendant filed a petition for discharge on September 22, 1970, and, on October 2, 1970, it was granted. A subsequent motion by the State to vacate that order was denied.
In its appeal from the order discharging defendant under Ill. Rev. Stat., ch. 38, par. 103-5, the State contends that the continuance granted at the May 13th proceeding is attributable to defendant and not the State, that this delay tolled the 120 day statutory period, that the new period had not run at the time of the hearing on defendant's petition for discharge, and that the court below therefore erred in granting the discharge.
The statute relied upon by defendant provides that he is entitled to discharge if not tried within 120 days from the time of arrest or from the time a delay is occasioned by him. A period in excess of 120 days passed from the date of defendant's arrest until presentation of his petition, and he was therefore entitled to discharge unless any of the delays were attributable to him. The only issue which we are called upon to decide is whether defendant caused a delay which tolled the statute.
• 1-4 It is well settled that when a defendant requests a continuance and it is granted, the delay is attributable to him. (People v. Canada, 1967, 81 Ill. App.2d 220, 225 N.E.2d 639.) Even when defendant does not expressly seek a continuance, but nevertheless causes a delay in the proceedings, the statute is tolled and the 120 day period begins to run anew. (People v. Stuckey, 1967, 83 Ill. App.2d 137, 227 N.E.2d 135.) Here the record indicates that the continuance granted at the preliminary hearing on May 13, 1970, was upon motion by the State. Even though the record ordinarily imparts verity, when other facts which appear in the report of proceedings are contradictory, a reviewing court must consider the matter on the basis of the record as a whole. (People v. Williams, 1963, 27 Ill.2d 327, 189 N.E.2d 314.) And it has been held that when the report of proceedings indicates that defendant was responsible for the continuance, even though the common-law record attributes it to the State, defendant is not entitled to discharge. (People v. Williams, 1961, 31 Ill. App.3d 230, 175 N.E.2d 576 (Abst.).) Therefore, unless our examination of the May 13th proceedings leads us to fairly conclude that defendant was in fact responsible for that continuance, he is entitled to discharge.
The statements by defendant which are contended to have caused the delay in question are contained in the following colloquy:
"The Court: What is defendant's background?
Mr. Caruth: Pretty bad, your Honor.
Mrs. Manning [for the State]: Extensive.
Mr. Caruth: But this time, I tried to go straight, mostly checks in the background. It looks bad on paper, your Honor, but it is really not as bad as it shows on the paper, your Honor.
The Court: Does it show checks in ...