APPEAL from the Circuit Court of Sangamon County; the Hon.
HARVEY BEAM, Judge, presiding.
MR. JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
Defendant was convicted in the Circuit Court of Sangamon County of the offense of armed robbery and sentenced to imprisonment in the penitentiary for a term of not less than 12 years nor more than 36 years. Defendant appeals on the grounds that he was deprived of his right to a speedy trial as implemented by the 120-day rule of Section 103-5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1973, ch. 38, par. 103-5), that his purported waiver of indictment did not comply with the requirements of Supreme Court Rule 401(b) (Ill. Rev. Stat. 1973, ch. 110A, par. 401(b)), that he was denied his right to a prompt preliminary hearing as guaranteed by article I, section 7, of the Illinois Constitution of 1970, and that the sentence is excessive.
Section 103-5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1973, ch. 38, par. 103-5) requires that "[e]very person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120-days from the date he was taken into custody unless delay is occasioned by the defendant * * *." The facts surrounding defendant's claim that the 120-day rule was violated were stipulated by the parties. Defendant was arrested for armed robbery on August 17, 1973. He posted bond on September 5, 1973, and was released. On September 7, 1973, he was arrested for parole violation since he was on parole for burglary at the time of the alleged commission of the armed robbery. He remained in custody until December 13, 1973. On that date the parole warrant was withdrawn, and defendant moved for return of his bond money on the armed robbery charge, which was granted. The prosecution then moved to have defendant released on his own recognizance even though defendant refused to sign the recognizance bond. The motion was granted, and defendant was released. The trial was set for January 14, 1974. There was an interval of 129 days between September 7, 1973, and January 14, 1974. Defendant's motion to dismiss on the basis of the 120-day rule was denied.
1 In order to be discharged under the 120-day rule, the defendant must have been in custody in connection with the charge for which he was subsequently tried. (People v. Nettles, 107 Ill. App.2d 143, 246 N.E.2d 29.) A threshold question in the instant case is whether defendant's detention on the parole warrant beginning on September 7 is to be considered as detention on the armed robbery charge for purposes of the 120-day rule. In People v. Patheal, 27 Ill.2d 269, 189 N.E.2d 309, this same issue was raised but not decided. In that case, which reversed a conviction for armed robbery, as the opinion pointed out:
"Even if the period of one month and 10 days that the defendant spent in the penitentiary [on the parole warrant] is excluded from consideration, he was still held [on the armed robbery charge] by the authorities of Coles County, without a trial, for a period just short of five months." 27 Ill.2d 269, 272-273, 189 N.E.2d 309, 311.
In the instant case, the parole warrant and the armed robbery charge were closely intertwined. The parole warrant clearly resulted from defendant's arrest for armed robbery. No action (other than a probable cause hearing) was taken on the violation of parole charge until after defendant had been indicted on the armed robbery charge. Then the parole warrant was withdrawn. At the time of the indictment, defendant had already been held for 90 days on the parole warrant.
Nevertheless, defendant was on bond on the armed robbery charge at the time he was taken into custody on the parole warrant and remained on bond on the armed robbery charge until he asked for return of his bond money. An armed robbery charge and a parole warrant are not interchangeable, and we conclude that defendant's detention on the parole warrant did not trigger the 120-day rule.
However, assuming arguendo that the arrest for parole violation is sufficiently connected to the armed robbery charge to be counted in the running of the 120-day rule, defendant concedes that he was released from custody before the expiration of the 120-day period. The question then is whether his release tolled the running of the 120 days.
In People v. Gooding, 21 Ill. App.3d 1064, 316 N.E.2d 549, this court discharged a defendant who had been held for 118 days and then released by the sheriff without authorization by the court, stating that:
"It is clear that this release was an effort by the authorities to circumvent the prophylactic effect of the 120-day rule. This attempt to evade the technical effects of the rule cannot be countenanced.
The release of any defendant must be accomplished in an orderly and legitimate manner. It is an absurd argument that a defendant can be incarcerated for a period of time only to be released upon the caprice of the sheriff or the State's attorney in order to avoid the 120-day rule. To sanction such conduct would amount in rendering section 103-5 meaningless." 21 Ill. App.3d 1064, 1067, 316 N.E.2d 549, 551.
In the instant case defendant was released from custody after having been held for approximately 97 days on the parole warrant. At the time of the withdrawal of the parole warrant he was free on bond on the armed robbery charge. He then asked for and received the return of his bond money. The State then moved to release defendant from custody without bond. Both of these actions were maneuvers aimed at the 120-day rule. After hearing argument on both sides, the court authorized defendant's release.
Thus, the instant case differs from Gooding in several important respects. Here defendant was released after 97 days rather than 118 days and his release was authorized by the court. Moreover, as the trial court indicated, here defendant took affirmative action to remain in custody in order to bring himself within the 120-day rule. Had he not asked for return of his bond money, he would have been automatically ...