APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
L. MASSEY, Judge, presiding.
MR. JUSTICE HAYES DELIVERED THE OPINION OF THE COURT:
Erasmo Santa (hereinafter defendant) was indicted on 26 November 1973 for the offense of unlawful delivery of a controlled substance (namely, heroin) in violation of section 401 of the Controlled Substances Act (Ill. Rev. Stat. 1971, ch. 56 1/2, par. 1401(b)). On 6 December 1973, defendant was arraigned; he pled not guilty and the cause was transferred to a trial judge for trial on 10 December 1973. When the cause was called for trial on that date, defendant filed a motion for discharge under the Fourth Term Act (Ill. Rev. Stat. 1971, ch. 38, par. 103-5). Defendant then personally responded ready for trial, but defendant's appointed trial counsel (an assistant public defender) answered not ready and filed a motion for discovery. The motion for discovery was allowed and, on motion of the court, the trial was continued pending a hearing on defendant's motion for discharge. On 4 February 1974, defendant's motion for discharge was heard and allowed; the court cited People v. Hudson (1970), 46 Ill.2d 177, 263 N.E.2d 473. On 28 February 1974, the State filed a motion to vacate the discharge. On 6 March 1974, the State's motion to vacate was denied on the ground that the court lacked jurisdiction owing to the fact that a vacatur would reinstitute the dismissed indictment, thereby subjecting defendant to double jeopardy. Pursuant to Supreme Court Rule 604(a) (1), the State here appeals from the allowance of the motion for discharge and from the denial of its motion to vacate the discharge. Ill. Rev. Stat. 1973, ch. 110A, par. 604(a)(1).
The relevant facts are as follows. According to the State, the alleged offense was committed on 5 June 1973. On 26 July 1973, after a showing of probable cause to arrest, the police obtained an arrest warrant for defendant, and on that same date the warrant was served and defendant was arrested. Defendant did not post bail and remained in custody at all material times thereafter.
On 31 August 1973, a preliminary hearing on probable cause to prosecute was held. Defendant was present at the hearing and was represented by an assistant public defender. A narcotics officer testified for the State to the delivery of heroin by defendant to the said officer on 5 June 1973, pursuant to a pre-arranged plan. After cross-examination of the officer, both parties rested and the following then occurred:
"THE COURT: Any other witnesses?
There will be a finding of probable cause, by agreement, Grand Jury.
MR. SILVERMAN [Defense Counsel]: Very close to entrapment.
THE COURT: 9-17 [a Monday], want on Friday [September 21].
MR. McGINNIS [Prosecutor]: Doesn't matter.
MR. SILVERMAN: It doesn't matter, your Honor, he is in custody, he is a parole violator so he's not going any place.
On 21 September 1973, on motion of the State, the cause was continued to 26 September 1973; neither defendant personally nor his counsel said anything. On 26 September 1973, defendant again appeared personally and was represented by an assistant public defender other than the one who had represented him on 31 August:
"THE COURT: Erasmo Santa, he was charged with delivery of heroin allegedly occurring on June 5th, 1973, and ...