APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
J. DOWNING, Judge, presiding.
MR. PRESIDING JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT:
Rehearing denied July 26, 1973.
This is an appeal by the State from an order of the circuit court discharging the defendant, Gordon Poteat, because he was not tried within 120 days of his arrest. The State contends that the defendant's motion for discharge was erroneously granted since he was responsible for a delay which tolled the running of the statute. Ill. Rev. Stat. 1969, ch. 38, par. 103-5(a).
Poteat, charged with aggravated battery and attempt murder, was taken into custody on September 6, 1970, and appeared in court on September 8th. The victim of his alleged attack was in a hospital and a continuance was requested by the State. The defendant's bond was set and he was informed that the case would be continued to September 30th. The court told him that on September 30th he could have the services of the public defender if he was unable to afford his own lawyer.
On September 30th he was not represented by counsel and the hearing was postponed on motion of the defendant until October 15th. Poteat was subsequently indicted. He did not obtain his release on bail and on January 29, 1971, he filed a motion for discharge which alleged that he had been incarcerated for more than 120 days and, without fault on his part, had not been brought to trial. The motion was granted.
At issue is whether the continuance of September 30, 1970, was properly attributed to the defendant. The complaining witness was in court on that date and the State, ostensibly, was ready to proceed with the preliminary hearing. The following colloquy took place:
"The Clerk: Gordon Poteat.
The Court: Are you Gordon Poteat?
The Court: You are charged with attempted murder, using a butcher knife at one said Bernice Stevens Is Bernice Stevens here?
The Court: Are you ready for trial?
The Court: When do you suppose you will be ...