APPEAL from the Circuit Court of Mercer County; the Hon. JOHN
D. O'SHEA, Judge, presiding.
MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
This is an appeal by the State from a judgment of the circuit court of Mercer County granting defendant's motion for discharge after the State had failed to bring defendant, Steven Ferguson, to trial within 160 days from the date of defendant's arrest.
The record discloses that on June 6, 1975 a complaint was filed charging defendant with "Felony Criminal Damage to Property" and a summons was issued. On June 24, 1975, defendant entered his appearance and filed a discovery motion which included a demand for a speedy trial. Such a demand commenced the running of the 160-day time period provided in section 103-5(b) of the Code of Criminal Procedure. (Ill. Rev. Stat. 1975, ch. 38, par. 103-5(b).) Upon a finding of probable cause, after a preliminary hearing on July 2, 1975, the defendant was bound over for grand jury proceedings and the defendant posted bond. An indictment was returned by the grand jury and forwarded to the trial court later in July. However, the presiding judge refused to receive the indictment because the State's Attorney had allowed an unsworn person to be present during the deliberations of the grand jury.
Public Act 79-671 became effective on October 1, 1975, amending section 111-2(a) of the Code of Criminal Procedure (Ill. Rev. Stat., ch. 38, par. 111-2(a)) and authorized the commencement of felony prosecutions either by information if a preliminary hearing is held or by indictment. (5 Ill. Leg. Serv. 1066 (1975).) Pursuant to the new act, on October 3, 1975, defendant was charged by information with the same crime as was the subject of the earlier defective indictment and notice was given defendant that an arraignment on the information would be held on October 15, 1975.
At the arraignment defendant's counsel filed a motion to quash the arraignment, contending that defendant had a right to a grand jury unless waived in open court, since the information charged defendant with an act committed on May 17, 1975, and the statute then in effect required the State to obtain an indictment in all felony cases. In essence, defendant's motion asserted that the right to a grand jury was a substantive right which existed both on the date of the offense and the date of arrest. As such, the State could not proceed by use of an information for to do so would constitute an imposition of an ex post facto law in contravention of the Federal Constitution.
When defense counsel presented his motion, the following exchange took place:
"Court: Well, this procedure and the arrest took place prior to October 1st. Preliminary hearing took place on July 2nd. I don't know what the answer may be, I think that at this point [it is] a procedural matter but if you want to risk the matter on appeal and possible contrary determination, Mr. Sloan [State's Attorney]?
State's Attorney: The State would be willing to risk that matter on appeal, of course I don't know if these brief comments are considered the hearing on this Motion, or whether or not the Court intends to rule on this Motion today. The State would like the opportunity for a full hearing on this Motion and a ruling by the Court.
Court: Alright, I think then because I don't * * * I'm not prepared to rule at this time, so your Motion to Quash will be continued to a date certain. What date do you have in mind?
State's Attorney: Could we do that relatively soon, next week or so?
Defense Counsel: Next Wednesday?
State's Attorney: Would that be agreeable with the Court?
A hearing on the motion to quash was held on October 22, 1975 and the court denied the motion. After the defendant had been arraigned and entered a not guilty plea, the court offered to call the jury on December 1, 1975, but the State's Attorney informed the court that he would be on vacation during that week and the trial was set for December 15, 1975. Answers to discovery were filed on December 10, 1975. On December 11, 1975, defendant filed a petition for discharge contending that he had demanded a speedy trial on June 24, 1975, and more than 160 days had passed without a trial. At a hearing on defendant's petition on December 12, 1975, the trial court ruled against defendant, believing that it was bound by People v. Byrn, 3 Ill. App.3d 362, 274 N.E.2d 186. A further hearing was held on December 15, 1975, after the trial court was informed of the decision in People v. Arch, 33 Ill. App.3d 331, 337 N.E.2d 221. (Arch and Byrn are both concerned with when the 160-day time period begins to run. ...