APPEAL from the Circuit Court of Cook County; the Hon. VINCENT
W. TONDRYK, Judge, presiding.
MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
A jury found defendant guilty of burglary, and he was sentenced to a term of 4 to 12 years. On appeal, he contends he should have been discharged because he was not tried within 120 days, as required by section 103-5 of the Code of Criminal Procedure of 1963. Ill. Rev. Stat. 1971, ch. 38, par. 103-5.
The pertinent portions of the record disclose that defendant was arrested and charged with burglary on July 25, 1972. Bond was set, but he remained in custody and was subsequently indicted on September 15, 1972. The public defender was appointed to represent him, and after his arraignment his counsel moved on September 27, 1972, for a reduction of bond. A hearing was held on that date, during which the court heard testimony from defendant and then, as the prosecutor began to read defendant's criminal record, the court interrupted and the following colloquy occurred:
"THE COURT: I will give you an early date.
MR. GOLDBERG (Assistant State's Attorney): served time in the House of Correction
THE COURT: Motion for bond reduction denied. Go ahead, pick a date.
MR. GOLDBERG: I have got others.
THE COURT: I haven't got time. Pick a date. We'll give him a trial. I can't talk about bond. If you're innocent, you walk out. If you're guilty, you go to jail.
MR. WALTERS (Assistant Public Defender): Set it down for three weeks from today.
THE COURT: How about October 18?
THE DEFENDANT: Can I get one earlier than that?
THE COURT: I can't give you one earlier than that. Motion Defendant, with subpoenas, October 18."
On October 18, the trial was postponed by order of court until November 21, when defendant announced he was ready to proceed, but the trial was continued on the State's motion until December 14. Upon the call of the case for trial on that date, defendant moved for a fourth term discharge, with the argument focusing on the question of whether defendant had requested or agreed to the continuance on September 27, 1972, after the court had denied his motion to reduce bond. His counsel argued that although the record indicated the setting of a new trial date had been on motion of defendant, the continuance had actually been upon the court's initiative when defense counsel was directed to "pick a date." Conversely, the State posits that the reply of defense counsel to "set it down for three weeks from today" and defendant's request at the same time for an earlier trial date constituted either a request for or an acquiescence in the delay of trial.
At the close of the arguments, the motion to discharge was denied, with the trial judge indicating that regardless of the language used in the order of September 27, 1972, the continuance had been in effect, by agreement, because the trial could not have proceeded that day inasmuch as ...