APPEAL from the Circuit Court of La Salle County; the Hon.
WALTER DIXON, Judge, presiding.
MR. JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
Defendants George Ellis and Arthur Jones appeal to this Court from a conviction and sentence of from 2 to 10 years as to Ellis and 1 to 10 years as to Jones on the charge of Escape.
While defendants were in custody on December 10, 1969, they were indicted for the offense of Escape. On December 16, 1969, defendant Ellis filed a motion for Substitution of Judges. The motion was granted on December 22, 1969. On February 25, 1970, defendant Jones filed a motion for Substitution of Judges. On March 6, 1970, the case was assigned to the Honorable David E. Oram pursuant to the motion filed February 25, 1970. On March 2, 1970, however, defendant Ellis filed, and on March 6, 1970, defendant Jones also filed, motion for change of venue.
On March 24, 1970, the cause was transferred to La Salle County. On May 12, 1970, each defendant filed his Motion for Discharge under the 120-day rule (Ill. Rev. Stat. ch. 38, par. 103-5). These motions were denied on May 13, 1970.
At the trial which was held thereafter, both defendants were convicted on May 19, 1970, for the offense of Escape. On June 26, 1970, the prosecution filed a Motion for Continuance of the hearing in aggravation and mitigation from June 26 to July 31, 1970, because of the illness of the trial judge. The continuance was ordered with the approval of defendants' attorney. On July 28, 1970, defendant George Ellis filed a motion attacking the proceedings in this cause on the basis of "double jeopardy". On July 31, 1970, the cause was continued to September 14, 1970, again with the consent of defendants' counsel. On August 11, 1970, defendant Ellis filed a motion attacking the delay between conviction and sentencing. On September 14, 1970, a hearing was held in the Circuit Court to determine to whom the case should be assigned because of the death of the trial judge Hobart W. Gunning who had presided at the trial. An order was then entered granting the motion for continuance without defendants' consent and the case was continued till September 30, 1970, for a hearing in aggravation and mitigation. On September 30, 1970, a hearing was held in aggravation and mitigation and at such time the court denied all of the motions filed by Ellis without a formal hearing.
On appeal in this Court, defendants raise three issues. (1) It is contended that under the terms of section 103-5 of chapter 38 of Illinois Revised Statutes, defendants were deprived of their constitutional right to a speedy trial and to due process of law; (2) that defendant Ellis was denied due process of law when the court refused to hear his motion to dismiss based upon double jeopardy; and (3) that the court lost jurisdiction to impose sentence on the defendants by reason of the lapse of 144 days between the finding of guilty as to defendants and the imposition of sentence.
• 1 Section 103-5 of chapter 38 of Illinois Revised Statutes provides that if a person is in custody in this State for an alleged offense he shall be tried by the court having jurisdiction "within 120 days from the date he was taken into custody unless delay is occasioned by defendant, a competency hearing, or by an interlocutory appeal". It is apparent that while the 120-day rule was enacted to insure a speedy trial, it also contained provisions to prevent abuse of such statute by creating certain exceptions. Specifically, if the delay is occasioned by the defendant, the statute does not run, and under the interpretations of the cases in this State, the time begins running anew after delay occasioned by defendant is interposed.
In People v. DeStefano, 85 Ill. App.2d 274, a similar issue was involved with respect to the 120-day rule. In considering the request of defendant for a change of venue and a substitution of judges and the effect of such motion upon the running of the statute, the court in that case said (at page 284):
"* * * the defendant requested a change of venue which was granted and the cause was then transferred to another judge for trial. A request for a change of venue when the case is reached for trial is attributable to the defendant so that it interrupts the running of the statute. The necessity for the postponement of the trial, in our judgment, was therefore the defendant's fault and the statute does not apply until a new 120 days has elapsed * * *."
It has been argued, as it is in the case before us, that so long as the substitution of judges has not occasioned additional delay, the 120 days should not be interrupted. The Supreme Court of this State pointed out that such analysis was not sound. In People v. Nowak, 45 Ill.2d 158, the date of the trial set for the new judge was the same as it was for the judge from whom it was assigned. The contention was made that the 120-day period should not be suspended. The court said with respect to such argument (at page 166):
"The fallacy of this argument becomes apparent when we remember that the selection of a date before Judge Healy (the judge the case was assigned to) was entirely dependent on the schedule of other cases in his court. The fortuitous circumstance that the same date happened to be available does not change the true nature of the initial proceedings before Judge Healy which involved the selection of a trial date as the first item on the agenda."
As stated in People v. Rankins, 18 Ill.2d 260, where the issue was the effect on the 120-day rule when defendant caused a delay, the court stated (at page 262):
"We have repeatedly held that where a defendant has sought and obtained a continuance within the period in question, * * * or when he asks for and receives a change of venue * * * or by his own action he was otherwise caused the delay, the right to be tried within the four-months period is temporarily suspended, * * * and the statute does not apply until a new four-months period has elapsed."
Similar conclusions were reached in People v. Rice, 122 Ill. App.2d 329, 333, in People v. Baskin, 38 Ill.2d 141, 144, and in People ...