APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
E. CHERRY, Judge, presiding.
MR. JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT:
Rickey Vanderbilt was indicted for rape and deviate sexual conduct. He waived a jury, was found guilty of both offenses and sentenced to the penitentiary for a term of 5 to 15 years. The issue on review is whether he was tried within 120 days of his arrest.
The pertinent statute provides that a person shall be tried within 120 days from the date he was taken into custody unless delay is occasioned by him, by an examination, hearing or adjudication as to his competency, by his physical incapacity or by an interlocutory appeal. (Ill. Rev. Stat. 1971, ch. 38, par. 103-5.) Vanderbilt was arrested on January 3, 1973 and remained in custody until his trial on June 21. On that date 169 days after his incarceration he demanded his discharge. The statute, however, was tolled from January 5 to February 16 because of a psychiatric examination ordered by the court. He was found competent and was subsequently indicted. The parties agree, for the purpose of this appeal, that the 120-day period started anew on February 16 and that it expired 5 days before his trial. They also agree that the test in determining whether the statute had run was what occurred on April 10, 1973 which was 53 days after the term recommenced on February 16 and 72 days before the trial.
Vanderbilt was arraigned on April 10, the public defender was appointed to represent him, and his case was assigned to Judge Earl E. Strayhorn for trial. On that same day the defendant's newly appointed counsel and the assistant State's attorney assigned to Judge Strayhorn's courtroom filed pretrial discovery motions. As he filed his motion the defendant's counsel stated:
"I am filing this without any intention of delaying the trial. If there are any parts of the motion that would delay the trial, I would be willing to waive those parts."
The State acknowledged receipt of the motion and the court replied:
Reciprocal discovery motions having been filed, the State is granted ten days to file [answer], the defense has ten days thereafter to respond to the State's request.
May 4th, without subpoenas "
"We object to it being regarded as under the defense' motion."
It is the State's view that the defendant's motion for discovery made a postponement necessary and the delay was therefore occasioned by him. The acceptance of this viewpoint, under the facts of this case, would mean that the mere filing of a discovery motion no matter how tentative, contingent or quickly answered would be enough to stop the running of the statute. This contention was ...