APPEAL from the Circuit Court of Livingston County; the Hon.
WAYNE C. TOWNLEY, Judge, presiding.
MR. PRESIDING JUSTICE CRAVEN DELIVERED THE OPINION OF THE COURT:
This is an appeal by the State from a judgment discharging the defendant for the State's failure to bring him to trial within 120 days.
On July 24, 1971, the defendant, along with two others, attempted to escape from the Illinois State Penitentiary at Pontiac, wherein they were lawfully imprisoned. The defendant was indicted on August 31, 1971, and arraigned on September 7, 1971, on the charge of attempted escape. At the arraignment defendant was found to be indigent and counsel was appointed. A recess was called to permit the defendant to confer with his appointed counsel concerning his plea. After the recess defendant's counsel informed the court that defendant desired to address it concerning his need for psychiatric care. The defendant essentially stated that he was suffering adversely from being incarcerated in his cell with nothing to do and that he felt a great deal of pressure to his brain. He stated that he had told the prison officials of his need for psychiatric care but that they had done nothing.
The court ordered that counsel prepare a formal motion supporting defendant's request. The judge noted that he was concerned and stated that defendant should consult his attorney on this matter, and that the court would consider the matter "in connection with these charges". In the same proceedings, the defendant pleaded not guilty and the cause was continued for a trial.
On September 14, 1971, defendant submitted a motion with supporting affidavits requesting psychiatric care. The motion states in full:
"Comes the defendant, David James Hundley, by his attorney, Chester Crabtree, Public Defender of Livingston County, Illinois, and moves the court to appoint a psychiatrist to examine and treat him, for the reason that there are times when he has mental lapses, has dizzy spells, when the floor on which he stands appears to move, and when he is often unable to think clearly.
The defendant, in support of his motion, submits his affidavit hereto attached and made a part of this motion as if set out in full."
The defendant's supporting affidavit states in full:
"David James Hundley, being first duly sworn, on oath deposes and says that he needs to be treated by a psychiatrist for the reason that he often suffers mental lapses when he cannot think clearly, has dizzy spells, when the floor on which he stands appears to move, when objects in his room appear to move round and round, and when he seems to be floating through the air."
On January 12, 1972, defendant's attorney filed a motion to dismiss the cause on the grounds that defendant had been in custody for more than 120 days without being brought to trial on the charges pending. At the hearing on the motion, defendant submitted that he had caused no delays that resulted in tolling the 120-day time limitation. On January 18, 1972, the trial court granted said motion. The State appealed.
The limited issue is whether the trial court erred in discharging the defendant under the mandate of the 120-day rule of section 103-5(a) of the Code of Criminal Procedure. (Ill. Rev. Stat. 1971, ch. 38, par. 103-5(a)). Defendant contends that his original request for general psychiatric care was unrelated to his competency to stand trial on the charges, and, therefore, did not constitute a delay. The State submits that defendant's request was for an examination for competency which tolled the 120-day limitation.
• 1 The right to a speedy trial is an absolute right emanating from the federal and state constitutions and is implemented by the 120-day rule. The statutory 120-day limitation commences to run from the time defendant is incarcerated on charges, or, as in this case, from the time defendant was arraigned while ...